The Australian Workers' Union, New South Wales v Office of Environment and Heritage

) fire stand by duty and fire detection (both fire tower operation and mobile fire patrol). (3) Employees referred to in order (1) are firefighters for the purposes of item 25 of Part 19H of Schedule 6 to the Workers Compensation Act 1987, following receipt by them of advice from an authorised person that they are to undertake firefighting duties (as defined in order (2)) and immediately upon the Employees commencing to do so. The Employees shall cease to be firefighters for the purposes of item 25 of Part 19H of Schedule 6 to the Workers Compensation Act 1987 following advice to them from an authorised person that firefighting duties (as defined in order (2)) are no longer required and immediately upon the Employees ceasing to perform firefighting duties. Catchwords: DECLARATORY RELIEF - Applications by Unions that certain employees employed in the Government Service in the Forestry Commission and National Parks and Wildlife be declared firefighters for the purposes of item 25 in Pt 19H of Sch 6 of the Workers Compensation Act 1987- Whether the Industrial Court had jurisdiction to grant the relief sought - "Industrial dispute" - "Industrial matter" - Consideration of Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 206 - STATUTORY INTERPRETATION - Principles - Purpose of item 25 in Pt 19H of Sch 6 of the Workers Compensation Act 1987 - Meaning of "firefighter" - Meaning of "firefighting duties" - Whether employees whose designated occupation is not that of firefighter but who perform firefighting duties as required are firefighters for the purposes of item 25 in Pt 19H of Sch 6 of the Workers Compensation Act 1987 - Orders made Legislation Cited: Fire Brigades Act 1989 Industrial Relations Act 1996 Industrial Relations Act 1979 (WA) Industrial Relations Act 1988 (Cth) Police Act 1990 Police Regulation (Superannuation) Act 1906 Rural Fires Act 1997 Workers Compensation Act 1987 Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 Workers Compensation Legislation Amendment Act 2012 Workplace Injury Management and Workers Compensation Act 1998 Workplace Relations Act 1996 (Cth) Cases Cited: A v Commission for Children and Young People [2001] NSWIRComm 194; (2001) 107 IR 211 Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 BGC Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (No 2) [2005] FCA 908; (2005) 143 FCR 409 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 290 ALR 647 Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268 Carricks Ltd v Pizzaro (1995) 38 NSWLR 274 Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529 Crewdson v Department of Community Services (No 2) [2002] NSWIRComm 121 Director-General, Department of Health (NSW) v NSW Nurses' Association [2011] NSWIRComm 111; (2011) 209 IR 49 Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 HSU east and Director-General, Department of Finance and Services [2012] NSWIRComm 112 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett v Opitz [1945] HCA 50; (1945) 70 CLR 141 Re McJannet; Ex parte Australian Workers' Union of Employees Queensland [1997] HCA 40; (1997) 189 CLR 654 Re Polites; Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 25; (1991) 173 CLR 78 Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 206 Speirs v Springvale Coal Pty Ltd [2010] NSWIRComm 30; (2010) 200 IR 133 Tristar Steering & Suspension Australia Limited v Industrial Relations Commission of New South Wales (No 2) [2007] FCAFC 95; (2007) 159 FCR 274 Western Sydney Area Health Service v Gibson [2001] NSWIRComm 290; (2001) 109 IR 359 Texts Cited: Macquarie Concise Dictionary (Third Edition) Category: Principal judgment Parties: The Australian Workers' Union, New South Wales (Applicant in IRC2012/1076) Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant in IRC2012/1106) Department of Premier and Cabinet (Respondent in both matters) Office of Environment and Heritage (Respondent in both matters) Department of Trade and Investment, Regional Infrastructure and Services, Forestry Commission Division trading as Forests NSW (Respondent in both matters) Representation: Mr A Hatcher SC (Applicant in IRC2012/1076) Mr M Gibian of counsel (Applicant in IRC2012/1106) Mr S Benson of counsel (Respondents) The Australian Workers' Union, New South Wales (Applicant in IRC2012/1076) W G McNally Jones Staff, Lawyers (Applicant in IRC2012/1106) Crown Solicitor's Office (Respondents) File Number(s): IRC 1076 and 1106 of 2012

Judgment 1On 11 October 2012, the Office of Environment and Heritage ("OEH") notified the existence of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 ("IR Act") in Matter No IRC 1058 of 2012. The dispute concerned industrial action in the form of work bans imposed by members of The Australian Workers' Union, New South Wales ("AWU"). The bans allegedly imposed related to high-risk firefighting activities such as working in helicopters, working on remote area fires and tree felling. The bans were in response to a failure on the part of the notifier to advise the AWU of the notifier's position regarding whether AWU members engaged in firefighting activities were exempt from recent changes to workers' compensation legislation that had the effect of reducing workers' compensation entitlements for employees in New South Wales. 2By way of background, on 22 June 2012 the Workers Compensation Legislation Amendment Act 2012 ("the amending Act") was passed. The amending Act reducing entitlements amended the Workers Compensation Act 1987 ("the 1987 Act"). Certain "high risk" occupations were exempted from the amendments. In the original bill presented to the Parliament, the exemptions were expressed as follows: (a) under proposed item 4 of Part 19H of Schedule 6, the "benefit amendments" made by the amending Act were not to apply, relevantly, in respect of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 - which effectively exempted firefighters in rural fire brigades operating under the aegis of the Rural Fire Service, emergency service workers in the State Emergency Service, and surf lifesavers; (b) under proposed item 25 of Part 19H of Schedule 6, the amendments made by the amending Act were not to apply to police officers. 3While the bill was in the committee stage in the Legislative Council on 22 June 2012, an amendment was moved to extend the exemption in item 25 to "paramedics and firefighters". The Hansard records that the mover of the amendment, Mr David Shoebridge MLC, said in support of the amendment: These amendments will ensure that the protection from benefit cuts proposed by the Government to apply to police, Rural Fire Service and State Emergency Service workers will also apply to those other, much-prized emergency personnel, paramedics and firefighters. As the Government's bill is currently drafted, police have their benefits protected, Rural Fire Service personnel and State Emergency Service personnel have their benefits protected, but the other emergency service personnel, the firefighters and the paramedics, who will be working side by side with Rural Fire Service and State Emergency Service personnel- all of whom will be going to the same bushfires, or the same road trauma incidents, or to fight the same fires and dealing with the same consequences of emergencies throughout our city, country and regional areas- will not. There will be two classes of benefits. The employed firefighters and the employed paramedics will get the stripped-down benefits, but the police, Rural Fire Service and State Emergency Service personnel will have the superior benefits, before they were so badly savaged by this Government's amending bill. That is grossly unfair for the emergency services sector. 4The Legislative Council then carried the amended bill the same day. The amended bill went back to the Legislative Assembly later that day and was likewise passed. 5Consequently, item 25 in Pt 19H of Sch 6 of the 1987 Act now reads: 25 Police officers, paramedics and firefighters The amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a police officer, paramedic or firefighter (before or after the commencement of this clause), and the Workers Compensation Acts (and the regulations under those Acts) apply to and in respect of such an injury as if those amendments had not been enacted. 6The effect of the amendment in item 25 of Pt 19H of Sch 6 was that other amendments in the amending Act, adversely affecting the entitlements of workers in respect of workers' compensation, did not apply to police officers, paramedics or firefighters. 7OEH has approximately 1,000 employees who are required as part of their duties to undertake firefighting and fire related activities. An issue arose as to whether the exemption in item 25 of Pt 19H of Sch 6 of the 1987 Act applied to the employees of OEH whose duties included firefighting duties. 8The AWU had since July 2012 attempted to ascertain whether OEH had accepted that employees engaged in firefighting duties were to be regarded as firefighters for the purpose of item 25. By 9 October 2012, the AWU had not received a definitive reply, although it is plain OEH had been seeking advice on the issue from other agencies, but without success. 9When the dispute came before the Commission on 12 October 2012, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA") sought to and was granted leave to intervene in the proceedings. The PSA has members employed by OEH and the Department of Trade and Investment, Regional Infrastructure and Services, Forests NSW on firefighting duties. 10In the proceedings on 12 October, OEH expressed its concern with the bans, claiming they were "irresponsible and dangerous to other firefighters and the community given the expectation of a difficult 2012-13 fire season due to the forecast weather conditions." 11The Commission put to the parties that provided the bans were lifted, the Industrial Court would sit in the first half of November to hear any application by the AWU for relief. All parties accepted that proposition and the Commission fixed 9 November as a hearing date. 12Subsequently, the AWU filed an application for declaratory relief on 19 October 2012. The named respondents to the application were the Department of Premier and Cabinet, Office of Environment and Heritage and Department of Trade and Investment, Regional Infrastructure and Services, Forestry Commission Division trading as Forests NSW. The PSA followed suit on 30 October 2012 and the named respondents in that case are the same. 13The AWU's application sought an order in the following terms: An ORDER declaring that employees of the First and Second Respondent (and any of their successor entities) who perform fire fighting activities and whose employment is covered by the Crown Employees (Office of Environment and Heritage - Parks and Wildlife Group) Field Officers and Skilled Trades Salaries and Conditions 2012 Award, the Office of Environment and Heritage (NSW) Flight Officers' Enterprise Agreement 2012 or the Forestry Commission Division Trading As Forests NSW Crown Employees Fieldwork and Other Staff Award 2010-2012 and any successor instruments ("the Employees") are "firefighters" for the purposes of Part 19H Item 25 of Schedule 6 to the Workers Compensation Act 1987. 14The PSA sought a similar order in the following terms: An ORDER declaring that persons employed by the Government of New South Wales to perform work for the First or Second Respondent (and any of their successor entities) who perform fire fighting activities and whose employment is covered by the Crown Employees (Office of Environment and Heritage - Parks and Wildlife) Conditions of Employment Award, the Crown Employees (NSW Department of Trade and Investment, Regional Infrastructure and Services) Forests NSW - Forestry Field Officers Award, the Crown Employees (Administrative and Clerical Officers - Salaries) Award 2007 or the Crown Employees (NSW Department of Trade and Investment, Regional Infrastructure and Services) Professional Officers Award and any successor instruments ("the Employees") are "firefighters" for the purposes of Part 19H Item 25 of Schedule 6 to the Workers Compensation Act 1987. 15Immediately prior to the applications being listed for hearing the Commission called on Matter No IRC 1058 of 2012, that is, the industrial dispute. The notifier proposed conciliation to resolve the dispute, which if successful would have made it unnecessary to proceed to hear the applications. Conciliation, however, was unsuccessful and the matter was adjourned. In those circumstances, the respondents indicated their position regarding the applications for declaratory relief, namely, that the Court lacked jurisdiction to entertain the applications, but if jurisdiction were found to exist the Court should find that the workers' compensation exemption provision for firefighters in item 25 applies when (and only when) such persons are directly involved in firefighting duties.

The jurisdictional issue 16The respondents' essential contention on jurisdiction was that the Industrial Court did not have jurisdiction to grant the declaratory orders sought because s 105 of the Workplace Injury Management and Workers Compensation Act 1998 ("1998 Act") confers exclusive jurisdiction on the Workers Compensation Commission "to examine, hear and determine all matters arising under" that Act and the 1987 Act. 17Relevantly, s 105(1) provides as follows: 105 Jurisdiction of Commission and Compensation Court (1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act. ... The reference to "the Commission" is a reference to the Workers Compensation Commission and not the Industrial Relations Commission. 18Notice should be taken of s 2A of the 1987 Act, which provides: 2A Relationship to Workplace Injury Management and Workers Compensation Act 1998 (1) The Workplace Injury Management and Workers Compensation Act 1998 is referred to in this Act as the 1998 Act. (2) This Act is to be construed with, and as if it formed part of, the 1998 Act. Accordingly, a reference in this Act to this Act includes a reference to the 1998 Act. (3) In the event of an inconsistency between this Act and the 1998 Act, the 1998 Act prevails to the extent of the inconsistency.

"Matters arising under" 19The first issue to be determined is whether the applicants' claims are "matters arising under" the 1987 Act or the 1998 Act. If they are not matters arising under either Act then s 105 has no application. If they are matters arising under either Act the inquiry remains as to whether the Workers Compensation Commission has exclusive jurisdiction to examine, hear and determine the claims. 20There are a number of constitutional cases that have examined s 76 of the Australia Constitution, which relevantly provides: The Parliament may make laws conferring original jurisdiction on the High Court in any matter: (i) arising under this Constitution, or involving its interpretation; (ii) arising under any laws made by the Parliament; ... 21Having in mind the reservation voiced by Priestley JA in Carricks Ltd v Pizzaro (1995) 38 NSWLR 274 at 277, that the phrase "arising under" may not necessarily have the same meaning in the context of the 1987 Act as it does in the Constitution, nevertheless the constitutional cases are instructive. 22In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett v Opitz [1945] HCA 50; (1945) 70 CLR 141 Latham CJ dealt with a contention in prohibition proceedings that a controversy between members of a registered organisation in respect of the observance of the rules of the organisation did not fall within the category of matters arising under a law made by the Parliament. At 150 his Honour stated: The argument has been based upon the words "arising under any law" rather than upon the word "matter". A controversy between persons as to whether rules of an organisation to which they belong have or have not been observed is, when brought before a Court, included within the meaning of the word "matter" as used in the Constitution, s.76; see In re Judiciary Act 1903-1920 and Navigation Act 1912-1920. It involves "a right or privilege or protection given by law" and "the prevention, redress or punishment of some act inhibited by law." 23His Honour then considered a number of United States' authorities before observing at 154: ... The relevant inquiry is whether the matter arises under the law. Thus one is compelled to the conclusion that a matter may properly be said to arise under a federal law if the right or duty in question in the matters owes its existence to the federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law. In either of these cases, the matter arises under the federal law. If a right claimed is conferred by or under a federal statute, the claim arises under the statute. This view is in accordance with Federal Capital Commission v Laristan Building and Investment Co Pty Ltd. The construction of the federal law, and perhaps the question of the validity of such a law, may be involved in such a matter. But it is not necessary that this should be the case in order that the matter may arise under the law. It is not necessary or desirable to attempt to frame an exhaustive definition of "matters arising under a law". In my opinion, "matters arising" include matters of the character mentioned. 24In Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 Barwick CJ at 374 confirmed that for a matter to arise under a statute, there must be more than simply a question of construction of that statute: ... It is of course not enough that a law made by the Parliament must be construed in the course of the decision of the case. There must be a matter arising under a law of the Parliament. The contrast between the language of s. 76 (i.) and 76 (ii.) is relevant in this connexion. The point at which interpretation of the federal statute, prima facie an apparently incidental consideration, may give rise to a matter arising under the statute is not readily expressed in universally valid terms. But the distinction between the two situations must be maintained. 25A similar approach was taken by the High Court (Dixon CJ, McTiernan, Williams, Webb, Fullagar and Kitto JJ) in Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529 at 540: Clearly enough a matter or a proceeding may involve the interpretation of the Act or of an order or of an award, although the proceeding does not arise under the Act." Taylor J similarly stated at 556: "...it is clear that neither matters involving the interpretation of the Act nor matters involving the interpretation of an order or award, by virtue of that character alone, fall within the specification of matters contained in ss. 75 and 76. 26Thus, it is apparent on these authorities that although a matter might involve the interpretation of a statute it will not necessarily follow that there is a matter arising under that statute. A matter may properly be said to arise under a statute if the right or duty in question in the matter owes its existence to the statute or depends upon the statute for its enforcement. As it was stated in Barrett, if a right claimed is conferred by or under a statute, the claim arises under the statute. 27However, distinguishing between a matter involving the interpretation of an Act and a matter arising under the Act is not always easy. French J in BGC Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers (No 2) [2005] FCA 908; (2005) 143 FCR 409 considered this difficulty. In doing so, his Honour followed Barrett and Felton v Mulligan: [29] There is difficulty in distinguishing between a matter involving the interpretation of an Act and a matter arising under the Act. This was thrown up in Felton v Mulligan, a case involving action on a deed in the equitable jurisdiction of the Supreme Court of New South Wales. The deed entered into by a husband and wife shortly prior to the dissolution of their marriage provided that the husband and his heirs, executors and administrators would pay periodical maintenance to the wife during her lifetime. Following her husband's death the wife sought to enforce the deed against his executors who raised in defence that the deed was void as purporting to oust the jurisdiction of the court under the Matrimonial Causes Act 1959 (Cth). The High Court held by majority that the Supreme Court was exercising jurisdiction in a matter arising under the Matrimonial Causes Act thus precluding appeal to the Privy Council. Dr Wynes observed that in the light of the decision in Felton v Mulligan it is difficult to imagine a case in which 'mere' interpretation of a Federal Act is involved and which does not arise thereunder - Wynes, WA Legislative Executive and Judicial Powers in Australia LBC 5th Edition (1976) (at 479). Barwick CJ, who was in the majority in Felton v Mulligan, said (at 374): The point at which interpretation of the federal statute, prima facie an apparently incidental consideration, may give rise to a matter arising under the statute is not readily expressed in universally valid terms. But the distinction between the two situations must be maintained. Walsh J cited the passage quoted earlier from the joint judgment in Collins which made that distinction and said (at 409): ... in my respectful opinion, the statement quoted restricts unduly, in so far as it relates to a matter of defence based directly upon an Act of the Parliament, the scope of the matters which may be held to arise under an Act. In the context of what constitutes matters arising under the Constitution or involving its interpretation within the meaning of s 76(i) of the Constitution, Professor Zines observed, in the light of James v South Australia [1927] HCA 32; (1927) 40 CLR 1 and Felton v Mulligan: In the light of the decision of the majority in Felton v Mulligan, however, there would seem to be very few matters involving the interpretation of the Constitution that do not arise under the Constitution. He also referred to Dr Wynes' observation about the effect of Felton v Mulligan - Cowen and Zines, Federal Jurisdiction in Australia 3rd Edition (2002) (at 69). [30] In my opinion what was said in Collins v Charles Marshall which related, in the context of that case to proceedings brought under a State Act do not apply in the present case. In the present case the primary relief sought was by way of declarations that the representatives of the CFMEU had no right under the IRA to enter the Burrup site. The basis of that argument was that any such right of entry would be inconsistent with the restrictive right of entry conferred by the WRA in relation to AWA employees. Central to that argument were contentions about the scope of the rights of entry conferred by the WRA in respect of AWA employees and whether they were inconsistent with rights of entry conferred by the IRA. It also involved a determination about the effect of obligations created by AWAs registered under the WRA in limiting the application of the rights of entry under the IRA. That the case required consideration of s 109 of the Constitution as placing limits upon the valid operation of rights of entry under the IRA in relation to any inconsistency does not mean that the case did not involve a matter arising under the WRA. [31] In my opinion the declaration sought necessarily involved a determination about the scope and operation of the right of entry under the WRA. [32] It is well settled that a matter arises under a law of the Commonwealth if a right or duty or a power or immunity in question in the matter "owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law" - R v Commonwealth Court of Conciliation and Arbitration; ex parte Barrett (1945) 70 CLR 141 at 154. See also Felton v Mulligan (at 387, 498 and 416); Moorgate Tobacco Co Ltd v Philip Morris Ltd (at 581-582). That principle was applied in a context relevant to the present case, by the High Court in Re Polites; ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78. The Court held that an application for mandamus to a deputy president of the Industrial Relations Commission to hear and determine the matter pending before him was a matter arising under what was then the Industrial Relations Act 1988 (Cth). Section 347 was held to apply to prevent the recovery of costs in that case. The duty which the deputy president was to be required to carry out was a duty imposed by him by the Industrial Relations Act 1988. [33] In the Australian Education Union case declarations were sought that workplace agreements under the Workplace Agreements Act 1993 (WA) were inconsistent with federal certified agreements under the WRA and therefore unable to be validly registered. It was so held but costs were refused on the basis that the declarations sought were dependent upon the operation of the certified agreement under the WRA. The application therefore concerned a matter arising under the WRA and s 347 applied. [34] In my opinion, for similar reasons, the application for the determination here sought depended for its success upon the existence of rights of entry under the WRA which were inconsistent with those conferred by the IRA. It therefore involved a matter arising under that Act. ... 28As French J stated, the primary relief sought was by way of declarations that the representatives of the CFMEU had no right under the Industrial Relations Act 1979 (WA) to enter the Burrup site. The application for the determination depended for its success upon the existence of rights of entry under the Workplace Relations Act 1996 (Cth), which were inconsistent with those conferred by the Industrial Relations Act. His Honour held that although the case required consideration of s 109 of the Constitution as placing limits upon the valid operation of rights of entry under the Industrial Relations Act in relation to any inconsistency, it did not mean that the case did not involve a matter arising under the Workplace Relations Act. 29The applicants in the present proceedings referred to Re McJannet; Ex parte Australian Workers' Union of Employees Queensland [1997] HCA 40; (1997) 189 CLR 654 and the decision of the Full Federal Court in Tristar Steering & Suspension Australia Limited v Industrial Relations Commission of New South Wales (No 2) [2007] FCAFC 95; (2007) 159 FCR 274, which applied the test in McJannet. It was submitted that those cases involved the determination of important questions of construction of the relevant statutes, but it was, nevertheless, held the matters were not matters arising under the relevant Acts. 30In McJannet the prosecutors had sought an order for costs against the respondent industrial organisation, but the respondent submitted that s 347(1) of the Industrial Relations Act 1988 (Cth) required the High Court to refuse to make any order for costs. That provision read: A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable excuse. 31At 656 the Court (Brennan CJ and McHugh and Gummow JJ) referred to an earlier decision in Re Polites; Ex parte Hoyts Corporation Pty Ltd (No 2) [1991] HCA 25; (1991) 173 CLR 78: The question whether a proceeding is in a matter arising under the Act within the meaning of s 347(1) was considered in Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 25; (1991) 173 CLR 78 where this Court made an order absolute for mandamus directing Mr Deputy President Polites to hear and determine a matter which was pending under the Act before him in the Industrial Relations Commission. That order enforced the statutory duty imposed upon the Deputy President by the Act. That was sufficient to make the proceeding in this Court itself a proceeding in a matter under the Act. By contrast, the proceeding in this case was to prohibit the continuance of the proceeding in the Federal Court on the ground that that Court had no jurisdiction under the Act to determine the matter in controversy between the parties as to their substantive rights. 32Referring to Barrett, the Court stated at 656: The test for determining whether a proceeding is in a matter arising under the Act for the purposes of s 347(1) is whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act. 33The Court proceeded at 657 to hold as follows (references omitted): In the present case, the proceeding before the Federal Court was in a matter arising under the Act because the respondents were claiming a right under the Act against the prosecutors. No order for costs could be made in respect of the proceeding in the Federal Court. The proceeding in this Court, however, is of a different nature and the controversy between the parties is a different matter. In this Court, the prosecutors asserted the absence of a jurisdiction in the Federal Court to proceed further in the proceeding pending there. The jurisdiction of this Court which the prosecutors invoked is conferred by s 75(v) of the Constitution. The duty which was sought to be enforced was the duty not to assume a jurisdiction which the Federal Court did not have. Although the jurisdiction of this Court to issue mandamus in Re Polites, like the jurisdiction to issue prohibition in the present case, was conferred by s 75(v) of the Constitution, the proceeding in Re Polites answered the description of a matter arising under the Act within the meaning of s 347(1). But the proceeding in the present case does not. The relief which was sought by way of mandamus owed its form and content to the provisions of the Act which imposed the duty that the respondent was commanded to perform. The relief which is sought in an application for prohibition is not for the enforcement of any right or duty created or conferred by the Act. Accordingly, s 347(1) has no application to a proceeding for the issue by this Court of prohibition under s 75(v) of the Constitution. 34In Tristar, Buchanan J, with whom Kiefel and Giles JJ agreed, observed in respect of McJannet at [11]: [T]he High Court considered the issue in proceedings (again invoking the jurisdiction conferred by s 75(v) of the Constitution) to prohibit any action upon a decision purportedly made under the federal IR Act. The High Court held there was no jurisdiction to make the decision. In those circumstances the High Court held that the relief sought and obtained did not relate to the enforcement of any right or duty created or conferred by the federal IR Act and that s 347(1) had no application. Polites was distinguished. Costs were awarded. The present proceedings are not a direct parallel to McJannet. Neither do they fall within the approach taken in Polites. 35In Tristar, the Court held that the provisions of the IR Act, which authorised the Industrial Relations Commission of New South Wales to hold an inquiry into certain matters concerning Tristar, were invalid by reason of inconsistency with s 16 of the Workplace Relations Act 1996 (Cth). Buchanan J at [9] characterised the issue determined in the proceedings as follows: [9] Section 16 of the WR Act contains a statement of parliamentary intent. Having regard to the terms of the WR Act (including s 16) s 109 of the Constitution was found to render invalid so much of the Industrial Relations Act 1996 (NSW) ('the IR Act') as would otherwise permit the Industrial Relations Commission of New South Wales ('the IRC') to continue to conduct an inquiry into matters referred to it under s 146(1)(d) of the IR Act by the New South Wales Minister for Industrial Relations. Consequently, the IRC lacked jurisdiction to perform any function in relation to the terms of reference establishing the inquiry. 36At [16] Buchanan J stated: [16] In my view, it cannot correctly be maintained that the relief which was granted by the orders earlier made in the present matter was a vindication of a right or duty conferred or created by the WR Act. Rather the right or duty (if that is the correct way to regard the absence of jurisdiction in the IRC) arose from the operation of s 109 of the Constitution. The proceedings were brought to enforce the duty upon the IRC not to act outside its jurisdiction, in circumstances where the IRC had made plain its intention to do so. The fact that s 109 of the Constitution was engaged by reason of the terms of the WR Act does not signify, in my view, that the proceedings were 'in a matter arising under' the WR Act within the meaning of s 824 of the WR Act. In my view the Court has power to make an order for costs in the proceedings. 37Kiefel J stated at [2]: [2] The first respondent was not exercising jurisdiction under the WRA, but purported to do so under the Industrial Relations Act 1996 (NSW) ('the State Act'). It was its lack of jurisdiction which was the basis for the injunctions sought and ordered. It lacked jurisdiction because an inconsistency arose between the WRA and the State Act and because the WRA disclosed an intention to cover the field of employer-employee relations. The matter has a connexion with the WRA, but does not involve a right arising under it and the duty of the first respondent not to proceed, which was enforced, arose because of the operation of s 109 of the Constitution and the resultant effect upon the State Act. 38In the present proceedings the applicants' claims involve more than a mere connexion with the 1987 Act. The relief they seek is binding declarations of right that designated employees who perform firefighting activities and whose employment is covered by specified awards are firefighters for the purposes of item 25 of Pt 19H of Sch 6 of the 1987 Act. 39The right to be exempted from the amendments to the 1987 Act by the amending Act depends entirely on whether the employees who are the subject of the applications are firefighters. In other words, the 1987 Act confers a right to be exempted if the employee is a firefighter. Whether an employee is a firefighter depends on the meaning of firefighter in item 25 of Pt 19H of Sch 6 of the 1987 Act. 40The right to be exempted from the amendments, a right which the applicants seek in their applications, is conferred by the 1987 Act. Consequently, the claims for declaratory relief arise under the 1987 Act. 41That conclusion, however, does not mean the Industrial Court has no jurisdiction to make the orders sought.

Declaratory jurisdiction 42The jurisdiction of the Industrial Court to make declaratory orders is derived from s 154 of the IR Act, which provides: 154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. 43In A v Commission for Children and Young People [2001] NSWIRComm 194; (2001) 107 IR 211 the Commission for Children and Young People contended that the Court did not have jurisdiction to make the declaration sought by "A", but at the hearing conceded that jurisdiction did exist. In dealing with this position, Hungerford J stated (at [8]-[9]) as follows: [8] ... I think the concession was properly made: see Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 at 126-127; Re Glass Workers' Redundancy (State) Award [1998] NSWIRComm 297; and Kellogg (Aust) Pty Ltd v National Union of Workers (NSW Branch) (1998) 89 IR 391. In Ford v SAS Trustee Corporation (2000) 98 IR 444, I had occasion to make a declaration as to a person's rights under the Police Regulation (Superannuation) Act 1906 in relation to his entitlement to certain leave and, as to the existence of jurisdiction, observed (at 476): The fundamental nature of the declaratory power in s 154 of the Industrial Relations Act is, in the opinion I hold, based on the existence of a matter about which the Commission (either as the Commission or sitting as the Court) has jurisdiction and even though no consequential relief is or could be claimed. In other words, a declaration of right may be made once there be identified a matter otherwise within the Commission's or the Court's jurisdiction, regardless whether any proceedings exist as to that matter, provided the declaration as sought relates to it. [9] In the present case, the Commission has power to make an order under s 9 of the Child Protection (Prohibited Employment) Act declaring that that Act is not to apply to a particular person who is a prohibited person; central to that determination is the status as such of the person concerned. The declaration sought here from the Court, in my view, relevantly relates to a matter within the Commission's jurisdiction, namely, the matter of the making of an order under s 9 in relation to the applicant as a person alleged to be a prohibited person. It follows, I am satisfied, that the Court has power to make the declaration sought under s 154 of the Industrial Relations Act as to whether the applicant is a prohibited person. 44His Honour's judgment in A v Commission for Children and Young People as to the availability and appropriateness of declaratory relief had been referred to, with approval, by a Full Bench of the Commission in Western Sydney Area Health Service v Gibson [2001] NSWIRComm 290; (2001) 109 IR 359 at [22]. See also Crewdson v Department of Community Services (No 2) [2002] NSWIRComm 121 at [64]; and Director-General, Department of Health (NSW) v NSW Nurses' Association [2011] NSWIRComm 111; (2011) 209 IR 49 at [149]. 45The matter in the present case arose as a consequence of a notification by OEH to the Commission pursuant to s 130 of the IR Act, which provides: 130 Notification of industrial dispute to Commission (1) Any of the following may notify the Commission of an industrial dispute for the purpose of resolving the dispute: (a) an industrial organisation of employees or employers, (b) an employer who is or is likely to be affected by the dispute, (c) a person who is or is likely to be the subject of a secondary boycott in connection with the dispute, (d) a State peak council (2) The Commission may act on its own initiative to resolve an industrial dispute. 46The Dictionary to the IR Act defines "industrial dispute" as follows: industrial dispute means a dispute (including a question or difficulty) about an industrial matter, and includes the following: (a) a demarcation dispute, (b) a threatened or likely industrial dispute, (c) a situation that is likely to give rise to an industrial dispute if preventative action is not taken. 47"Industrial Matters" is defined in s 6 of the IR Act as meaning "matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry." It seems to me the question of whether an employee covered by an industrial instrument of the Commission is entitled to be regarded as a firefighter for the purposes of the 1987 Act is self evidently a matter or thing affecting or relating to work done or to be done in any industry or, alternatively, a matter or thing affecting or relating to the rights of employees. By its notification, OEH accepted this was so. 48However, the effect of the respondents' position is that the Industrial Court may not construe the meaning of "firefighter" in the 1987 Act even for the purpose of assisting the Commission to carry out its core function of resolving industrial disputes. This is the case notwithstanding these proceedings have their origin in an industrial dispute and the parties originally accepted that the declaration or otherwise of whether certain employees had a right to be regarded as firefighters for the purpose of the 1987 Act was a means of resolving the dispute.

Speirs v IRC 49The recent decision of the Court of Appeal in Speirs v Industrial Relations Commission of New South Wales [2011] NSWCA 206 provides some assistance in determining whether the Court has jurisdiction to make the orders sought in these proceedings. Speirs involved the question of the Industrial Relations Commission's jurisdiction to order the reinstatement of Mr Speirs under Pt 8 of the 1987 Act. Under that Part, the Commission has power to order the reinstatement of an injured worker (see ss 242 and 243). The power to make such orders depends, inter alia, on whether the worker had an entitlement to workers' compensation (see s 240(2)). The Full Bench of the Commission had decided that it was precluded from making any reinstatement order because the question of whether a worker was entitled to compensation was, according to s 105 of the 1998 Act, exclusively a matter for the Workers Compensation Commission: Speirs v Springvale Coal Pty Ltd [2010] NSWIRComm 30; (2010) 200 IR 133. 50The Court of Appeal found the Commission had erred and that s 105 did not preclude the Commission from determining the question of whether the worker was an injured worker, that is, a worker "who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers' Compensation (Dust Diseases) Act 1942" (s 240(2)). Relevantly, Giles JA (with whom Allsop P and Hodgson JA agreed) held at [86]-[95]: [86] The Commission's reasons for construing s 105(4A) as if governed by "Subject to this Act ... " are sound, and that construction was not in issue in the application. [87] Those words are apt to make the conferral of exclusive jurisdiction on the Workers Compensation Commission (s 105(1)) and the District Court (s 105(4A)) subject to conferral of jurisdiction on the Commission under Pt 8 of the WC Act, regarded as forming part of the WIM Act. It could not be said that they had that function from the beginning, since they were in earlier versions of s 105 prior to the 2006 importation of the reinstatement provisions into the WC Act, but s 105 must be construed as it now stands: Commissioner of Stamps (South Australia) v Telegraph Investment Company Pty Ltd (1995) 184 CLR 453 at 463 per Brennan CJ and Dawson and Toohey JJ; Hardman v Minehan [2003] NSWCA 130; (2003) 57 NSWLR 390 at [73] per McColl JA. [88] However, express words are not essential; the WC Act and the WIM Act are to be construed as a whole, giving harmonious operation to the Commission's jurisdiction in exercising the power to make reinstatement orders and the jurisdiction, expressed to be exclusive, of the Workers Compensation Commission, the District Court and the Board. [89] There should be recalled the well established principle that a power vested in a court should not be construed as subject to limitations not clearly to be seen: see for example Patton v Buchanan Borehole Collieries Pty Ltd [1993] HCA 46; (1993) 178 CLR 1 at 23 per Gaudron J; Knight v F P Special Assets Ltd (1992) 174 CLR 78 at 205 per Gaudron J; Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38; (2006) 226 CLR 486 at [10] per Gleeson CJ and Gummow, Kirby, Hayne and Crennan JJ; Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at [102] per Kirby J. The power vested in the Commission to order reinstatement should not lightly be construed as subject to the limitation that a necessary element must be determined elsewhere, rather than by the Commission as part of the exercise of the power. [90] Regard to the words "Subject to this Act ... " may be sufficient to conclude that the Commission can determine injury entitling a worker to receive compensation as part of exercising its power to make a reinstatement order. There is a further path to that conclusion. [91] For reasons earlier given, a miner's claim to a reinstatement order is not a coal miner matter. Contrary to the parties' common ground, see [35] above, the relevant potential exclusive jurisdiction is that of the Workers Compensation Commission. [92] Where s 105(1) speaks of "matters arising under this Act", a claim to a reinstatement order must be outside the exclusive jurisdiction of the Workers Compensation Commission notwithstanding that it is a matter arising under the WC Act - the harmonious construction of the WC Act and the WIM Act so requires. That "matter" is not caught by s 105(1). Determination of injury entitling a worker to receive compensation, as part of that "matter", is also outside the exclusive jurisdiction of the Workers Compensation Commission. The whole includes its parts. [93] The position would be the same even if a miner's claim to a reinstatement order is a coal miner matter. The "matter" of determining injury entitling the miner to receive compensation would not be a coal miner matter caught by s 105(4A). [94] This path is not necessary in relation to "matters and questions arising out of a claim for compensation under this Act" in s 5(2)(a) of the Workers Compensation (Dust Diseases) Act. Entitlement to receive compensation for the purposes of s 240(2) of the WC Act is not a matter or question arising out of a claim for compensation under that Act. It arises out of the claim to a reinstatement order. [95] Respectfully differing from the Full Bench, in my opinion the Commission had jurisdiction to determine for itself whether the applicant was entitled to receive compensation for his injuries. 51It may be seen that Giles JA referred to the "well established principle that a power vested in a court should not be construed as subject to limitations not clearly to be seen". There is also the well established principle that where two pieces of legislation conflict or potentially conflict, a court will endeavour to adopt a construction which permits both pieces of legislation to stand together: Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268 at 276 and Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 at 17. 52Giles JA added (at [89]) that: [89] ... The power vested in the [Industrial Relations] Commission to order reinstatement should not lightly be construed as subject to the limitation that a necessary element must be determined elsewhere, rather than by the Commission as part of the exercise of the power. 53In Speirs, Giles JA said at [92] that a claim for a reinstatement order must be outside the exclusive jurisdiction of the Workers Compensation Commission notwithstanding that it was a matter arising under the 1987 Act. The "matter", that is, the reinstatement claim, was not caught by s 105(1) of the 1998 Act. His Honour said determination of injury entitling a worker to receive compensation, as part of the "matter", was also outside the exclusive jurisdiction of the Workers Compensation Commission. 54Drawing an analogy with Speirs, claims for declaratory relief must be outside the exclusive jurisdiction of the Workers Compensation Commission notwithstanding the claims deal with rights arising under the 1987 Act. The Workers Compensation Commission has no power to order declaratory relief. The "matters", that is, the claims for declaratory relief are, therefore, not caught by s 105(1). The determination of whether an employee is a firefighter as part of the "matters" (that is, the claims for declaratory relief) is also outside the exclusive jurisdiction of the Workers Compensation Commission. As Giles JA said, "The whole includes its parts." 55On this basis I find the Court has jurisdiction to make the declaratory orders sought by the applicants.

Industrial Court's jurisdiction under workers compensation legislation 56There is, however, an additional basis for finding jurisdiction. The Industrial Court's jurisdiction to make the orders sought may be derived from the 1987 Act and the 1998 Act. As it has already been observed, Pt 8 of the 1987 Act provides the Commission with power to make orders reinstating a dismissed injured worker. Sections 242 and 243 provide: 242 Application to Industrial Relations Commission for reinstatement order if employer does not reinstate (1) If an employer does not reinstate the worker immediately to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), the worker may apply to the Industrial Relations Commission for a reinstatement order. (2) An industrial organisation of employees may make the application on behalf of the worker. (3) The Industrial Relations Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured worker was dismissed. 243 Order by Industrial Relations Commission for reinstatement (1) The Industrial Relations Commission may, on such an application, order the employer to reinstate the worker in accordance with the terms of the order. (2) The Industrial Relations Commission may order the worker to be reinstated to employment of the kind for which the worker has so applied for reinstatement (or to any other kind of employment that is no less advantageous to the worker), but only if the Commission is satisfied that the worker is fit for that kind of employment. (3) If the employer does not have employment of that kind available, the Industrial Relations Commission may order the worker to be reinstated to employment of any other kind for which the worker is fit, being: (a) employment of a kind that is available but that is less advantageous to the worker, or (b) employment of a kind that the Commission considers that the employer can reasonably make available for the worker (including part-time employment or employment in which the worker may undergo rehabilitation). (4) If the Industrial Relations Commission orders the worker to be reinstated, it may order the employer to pay to the worker an amount stated in the order that does not exceed the remuneration the worker would, but for being dismissed, have received after making the application to the employer for reinstatement and before being reinstated in accordance with the order of the Commission. 57As senior counsel for the AWU submitted, the recent amendments to the 1987 Act operate, inter alia, to limit the circumstances in which a person may be entitled to workers' compensation. The examples given were journey claims (s 10(3A)) and heart attacks and strokes (s 9B). Section 9B(1), for instance, now provides that no compensation is payable in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature. 58The AWU submitted that an application for reinstatement under Pt 8 of the 1987 Act by a "firefighter" whose injury arose from a heart attack or stroke would necessarily require the Industrial Relations Commission to determine whether the worker had an entitlement to workers' compensation (see s 240(2)). That, in turn, would require a determination as to whether the worker was a firefighter for the purposes of item 25 of Pt 19H of Sch 6. The AWU submitted that on the authority of Speirs it is within the jurisdiction of the Industrial Relations Commission to determine that legal question. It must follow, it was submitted, the Industrial Court has the power to make a declaration with respect to the same legal question. 59The respondent submitted that any power to make a declaratory order in the example cited by the AWU derived from the fact that the 1987 Act gave certain powers to the Industrial Relations Commission in respect of the reinstatement of injured workers. The exclusivity given to the Workers Compensation Commission under s 105 of the 1998 Act was "Subject to this Act" and, as Giles JA found in Speirs, that "may be sufficient to conclude that the Commission can determine injury entitling a worker to receive compensation as part of exercising its power to make a reinstatement order." However, as I understood the respondents' submission, the Court would not be exercising its power in granting the declaratory relief in this case pursuant to Pt 8 of the 1987 Act. Accordingly, the approach taken by the Court of Appeal in Speirs was not open to the Court. 60That submission tends to overlook the fact that s 154 enables the Court to make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction and the Court may do so, whether or not any consequential relief is or could be claimed. Thus, it does not matter that there is no actual proceeding under Pt 8 of the 1987 Act currently on foot. Given the Industrial Relations Commission has jurisdiction under Pt 8 of the 1987 Act, regardless of whether there are any proceedings on foot under that Part, the Court has jurisdiction to make binding declarations of right in relation to a matter arising under Pt 8 of the 1987 Act. 61Section 105 of the 1998 Act does not oust that jurisdiction. If, as it was held in Speirs, the Industrial Relations Commission has power to determine injury entitling a worker to receive compensation as part of exercising its power to make a reinstatement order under Pt 8 of the 1987 Act, it must follow the Commission has jurisdiction to determine whether a worker is a firefighter for the purpose of determining the worker's entitlement to workers' compensation in the context of a matter arising under Pt 8. It must also follow the Industrial Court has jurisdiction to make declaratory orders in relation to that matter regardless of whether there are any proceedings on foot under Pt 8. 62Two other instances cited by the AWU that tend to confirm the Court's jurisdiction to make the declaratory orders sought were, first, that under s 245 of the 1998 Act proceedings for an offence against that Act, the 1987 Act or the regulations under those Acts, are to be dealt with summarily: (a) before the Local Court, or (b) before the Industrial Relations Commission in Court Session (ie, the Industrial Court: see s 151A of the IR Act). The Court is not excluded from exercising this jurisdiction by s 105 because the operation of s 105 is "Subject to this Act ..." 63The AWU submitted that the 2012 amendments to the 1987 Act altered the offence in s 54 of that Act concerning the termination or reduction of weekly compensation benefits without giving the required notice, by re-defining the circumstances giving rise to the defence. Section 54 now relevantly provides: 54 Notice required before termination or reduction of payment of weekly compensation (1) If a worker has received weekly payments of compensation for a continuous period of at least 12 weeks, the person paying the compensation must not discontinue payment, or reduce the amount, of the compensation without first giving the worker not less than the required period of notice of intention to discontinue payment of the compensation or to reduce the amount of the compensation. Maximum penalty: 50 penalty units. (2) The required period of notice for the purposes of this section is: (a) when the discontinuation or reduction is on the basis of any reassessment by the insurer of the entitlement to weekly payments of compensation resulting from a work capacity decision of the insurer-3 months, or (b) in any other case-2 weeks for a worker who has been receiving weekly payments of compensation for a continuous period of less than 1 year, or 6 weeks for a worker who has been receiving weekly payments of compensation for a continuous period of 1 year or more. (3) If the payment of compensation to a worker is discontinued, or the amount of compensation is reduced, by a person in circumstances involving the commission by that person of an offence under subsection (1), the worker may, whether or not that person has been prosecuted for the offence, recover from the person an amount of compensation that: (a) if no period of notice has been given-is equal to the amount of compensation, or additional compensation, that would have been payable during the required period of notice if payment of the compensation had not been discontinued or if the amount of compensation had not been reduced, or (b) if less than the required period of notice has been given-is equal to the amount of compensation that would have been payable during the balance of the required period of notice if payment of the compensation had not been discontinued or if the amount of the compensation had not been reduced. ... 64The version of s 54 applicable prior to the 2012 amendments was relevantly in the following terms: 54 Notice required before termination or reduction of payment of weekly compensation (1) If a worker: (a) has received weekly payments of compensation for a continuous period of at least 12 weeks, and (b) has provided the worker's employer, or the employer's insurer, with a certificate by a medical practitioner specifying the expected duration of the worker's incapacity, the person paying the compensation shall not discontinue payment, or reduce the amount, of the compensation during the period of incapacity so specified without giving the worker the prescribed period of notice of intention to discontinue payment of the compensation or to reduce the amount of the compensation. Maximum penalty: 50 penalty units. (2) If the payment of compensation to a worker is discontinued, or the amount of compensation is reduced, by a person in circumstances involving the commission by that person of an offence under subsection (1), the worker may, whether or not that person has been prosecuted for the offence, recover from the person an amount of compensation that: (a) if no period of notice has been given-is equal to the amount of compensation, or additional compensation, that would have been payable during the prescribed period of notice if payment of the compensation had not been discontinued or if the amount of compensation had not been reduced, or (b) if less than the prescribed period of notice has been given-is equal to the amount of compensation that would have been payable during the balance of the prescribed period of notice if payment of the compensation had not been discontinued or if the amount of the compensation had not been reduced. (3) The prescribed period of notice referred to in this section is: (a) if the worker has been receiving weekly payments of compensation for a continuous period of at least 12 weeks but less than 1 year-2 weeks, or (b) if the worker has been receiving weekly payments of compensation for a continuous period of 1 year or more-6 weeks. ... 65Item 25 of Pt 19H of Sch 6 of the 1987 Act provides that the 2012 amendments do not apply "to and in respect of" an injury to, inter alia, a firefighter. Senior counsel for the AWU submitted: Given the breadth of that language, if it is alleged that weekly compensation to an injured "firefighter" has been terminated or reduced in breach of s 54, it will be necessary to determine whether the worker is covered by item 25 in order to determine whether the new or the old s 54 applies. The Industrial Court has jurisdiction to determine that legal question and to make a declaration with respect to it. 66The other instance referred to by the AWU was that s 248 of the 1987 Act makes it an offence to dismiss an "injured worker" within six months of the injury because the worker is not fit for employment. As noted earlier, an "injured worker" is a worker entitled to compensation under the 1987 Act: s 240(2). Counsel for the AWU correctly submitted: If it is alleged that a "firefighter" has been dismissed because of an incapacity to work within 6 months of an injury sustained (say) on a journey to work or as a result of a heart attack or stroke, it will be necessary again for the Court to determine as an anterior legal question whether item 25 applies to the worker in order to determine whether he or she was an "injured worker". That is again a matter which the Court therefore has jurisdiction to determine by way of declaratory order under s 154. 67Thus, the Court is specifically provided with jurisdiction to deal summarily with offences arising under the 1998 Act or the 1987 Act and in doing so, as it has been demonstrated, may be required to determine whether a worker is a firefighter. In the light of that jurisdiction, it must follow the Court has jurisdiction to make binding declarations of right in relation to a matter involving the question of whether a worker is a firefighter for the purposes of item 25, regardless of whether or not any consequential relief is or could be claimed.

Respective contentions of the parties 68The AWU's position was that the declaratory orders would apply to employees who perform firefighting activities and whose employment is covered by the Crown Employees (Office of Environment and Heritage - Parks and Wildlife Group) Field Officers and Skilled Trades Salaries and Conditions 2012 Award, the Office of Environment and Heritage (NSW) Flight Officers' Enterprise Agreement 2012 or the Forestry Commission Division Trading As Forests NSW Crown Employees Fieldwork and Other Staff Award 2010-2012. 69The PSA's position was that any orders should apply in relation to those employees who have attained Fire Fighter Level 1 competency and perform firefighting activities and are within the coverage of the Crown Employees (Office of Environment and Heritage - Parks and Wildlife) Conditions of Employment Award, Crown Employees (NSW Department of Trade and Investment, Regional Infrastructure and Services) Forests NSW - Forestry Field Officers Award, Crown Employees (Administrative and Clerical Officers - Salaries) Award 2007, and Crown Employees (NSW Department of Trade and Investment, Regional Infrastructure and Services) Professional Officers Award. 70The respondents' position was that given the temporal and functional components inherent in the role of firefighter, and given such persons can be drawn from a multitude of classifications and positions within both Forests NSW and National Parks and Wildlife Service, the workers' compensation exemption provision in item 25 for firefighters applies when (and only when) such persons are directly involved in firefighting duties. 71According to the respondents, this would include all operational staff who have been assigned positions identified as "Incident positions", those positions being: (i) Crew member; (ii) Crew leader; (iii) Sector commander; (iv) Divisional commander; (v) Operations and aerial staff where those operations are directly connected to the suppression of a bushfire; (vi) The occupants of any other incident position which require their attendance at the fire scene or close proximity thereto for the purpose of assisting in the fire suppression and response activities directly related to the fire. 72It was submitted for the respondents that the workers' compensation exemption would apply for such duration as those firefighting duties were in operative effect. For the remainder of the year, the relevant workers' compensation provisions applicable to each employee's normal work function would apply. 73Thus, the position of the respondents was that certain employees may be regarded as "firefighters" for the purposes of item 25. However, there was a temporal and an operational limitation. The temporal limitation was that such employees may only be regarded as firefighters when they were engaged in firefighting duties and not at other times when they were carrying out other work functions and the operational limitation was that the employees had to be "directly involved in fire fighting duties". 74The positions adopted by the parties are not without their respective difficulties. The Unions' position would require a clerical employee who may spend 90 per cent of his or her time on clerical duties and 10 per cent on firefighting duties to be regarded at all times as a firefighter for the purposes of item 25 in circumstances where clerical employees generally would not be entitled to the exemption, and consequently the valuable benefit, that item 25 provides. 75The respondents' position, on the other hand, lacks certainty. What does "directly involved in firefighting duties" mean? The respondents submitted hazard burning was not firefighting. Yet Julian Peter Armstrong, Operations Team Leader, Southern Region Batemans Bay for Forests NSW, gave evidence for the PSA that hazard reduction was almost as dangerous as direct fighting: Hazard reduction duties are almost as dangerous as direct fire fighting of a wild fire as there is a high risk of trees/limbs falling due to being damaged by fire, walking in steep country on rough ground (sprains/strains/falls), using a chainsaw on burning trees, driving through smoke, working alongside busy roads where they pass through State Forest which is being burned (such as the Princes and Pacific Highways), travelling in helicopters (risk of mechanical failure/powerlines/bird-strike, etc), very high fuel loads in harvested areas (resulting in hot, high-intensity fires), and the unpredictability of weather (especially local wind effects).

The evidence 76The AWU called evidence from three witnesses: (a) Brian Lynch, Supervising Forest Officer Grade 6.3 for the Walcha area, Forests NSW; (b) Garth Toner, Senior Field Supervisor for the Nowra Area, National Parks and Wildlife Service; and (c) David Hutchins, Aviation Role Equipment Supervisor/Senior Air Crewman within the Office of Environment and Heritage's Flight Operations Unit. 77For the PSA, there were two witnesses: (a) Mr Armstrong; and (b) Arthur Willis, Area Manager for the Alpine area, based in Jindabyne, National Parks and Wildlife Service. 78Mr S Benson of counsel for the respondents called two witnesses: (a) Dean William Anderson, Director of Native Forest Operations, Forests NSW; and (b) Timothy John McGuffog, State Fire Manager, Forests NSW. 79Noting there was no issue that certain employees employed by the respondents are firefighters for the purposes of item 25, relevant matters arising from the respondents' evidence may be identified as follows: (a) One of the objects of Forests NSW is the conservation of the timber resources on land controlled by Forests NSW. That necessarily involves taking all practical steps to protect those resources from forest fires. (b) The Forestry Commission Division trading as Forests NSW Crown Employees Fieldwork and Other Staff Award 2010-2012 makes provision for the payment of wages and conditions of employment for field workers engaged by Forests NSW. Section 7 is headed "Fire Fighting". That Section makes express provision for the definition of "fire fighting duty" at Clause 23.1 in the following terms: 23.1 Definition 23.1.1 For the purposes of this clause, fire-fighting duty includes: (1) Travel to and from the fire, surveillance of a running fire, fire suppression and mop-up (including logistical support, eg: meal delivery, fuel delivery etc), either within or outside normal working hours. (2) At the completion of mop-up and where subsequent patrol of the fire is undertaken, this will not be considered as fire fighting. If, during the course of this patrol, further active mop-up work is required; eg: use of water or chainsaw work, then this would be paid as fire fighting, provided that a minimum of one (1) hour's work of this nature has been undertaken. 23.1.2 Fire stand-by duty, fire detection (both fire tower operation and mobile fire patrol) outside normal working hours. 23.1.3 For the purposes of this clause fire fighting does not include: (1) hazard reduction burning (2) travel to and from other Regions to undertake fire fighting (3) fire detection, both fire tower operation and mobile fire patrol during normal working hours 23.1.4 Note: Hazard Reduction (HR) includes both post harvest and broad area burning. In instances where HR burns have minor breakaways and are contained by the crews initially deployed for the hazard reduction operation, this will not be considered fire fighting. Where it is necessary to report the breakaway to the office requesting additional resources, this will be considered as fire fighting until the breakaway is contained. (c) Fieldworkers who are assigned fire fighting duties are required to have a fire-fighter health and fitness medical assessment and, dependent on that medical assessment, each will then undertake a task based assessment. (d) The main award relating to fire fighting activities within Forests NSW is the Crown Employees (NSW Department of Trade and Investment, Regional Infrastructure and Services) Forests NSW - Forestry Field Officers Award, 2012. This award covers a range of classifications within the generic descriptor of "Forester". There are approximately 100 Foresters engaged under that award. In Clause 1 Definitions there is a definition of "Fire Fighting" in the following terms: "Fire Fighting" means all work involved in a fire suppression effort in which there is Forests NSW participation, from the reporting, through to reconnaissance, organisation of resources, control and mop up to completion of patrol and may involve office duty in the organisation and direction of the fire fighting effort as well as work at the fire front. (e) All fires commence as a Class 1 Fire and may or may not progress to Class 2 or 3 fires. All wild fires commence as a Class 1. This fire is generally defined as a single agency response in managing the fire and is usually burning under relatively benign weather conditions, not threatening property or assets and is expected to be relatively easily controlled. It ought to be noted that hazard reduction burning is not subject to this classification. (f) When more than one agency becomes involved the fire is usually classified as a Class 2 fire and is more threatening and relatively more difficult to control. (g) A Class 3 fire will require significant resources and management to control and will automatically come under the Control of the Rural Fire Service, within their defined jurisdiction, and NSW Fire and Rescue in built up areas, regardless of land tenure. The Commissioner will usually declare these fires under s 44 of the Rural Fires Act 1997. (h) Forests NSW delivers a range of fire fighting and fire management training to its staff in order for them to be able to undertake the roles expected of them. There are three levels of firefighter qualifications. These are firefighter, crew leader and group leader, which are delivered and assessed to National Competency standards by a registered training organisation currently Riverina TAFE for Forests NSW. (i) Forests NSW staff undertakes, or are designated roles on the fire ground in accordance with their level of qualifications, training and demonstrated skills on the fire ground. All Forests NSW fire fighting staff qualifications are demonstrated by a sticker on their helmets which identify them as being a fire fighter, crew leader or group leader. This identification reflects the types of roles and responsibility that should be expected of or asked of any given staff member in allocating them tasks. Specific role training and experience is recorded in a training database which can be interrogated to fill roles with the right level of training and experience. (j) All Forests NSW staff must have a fire fighter qualification to undertake any fire fighting or hazard reduction operations. All staff must also undertake an annual medical assessment and a task based physical assessment to ensure they are fit for fire fighting. (k) Fire fighters are managed under the direction of crew leaders who are trained and experienced in higher levels of leadership, fire behaviour, fire control and fire management. A Group Leader is trained to a higher level still, as well as management of a multi agency response. Training is also provided for a range of specific fire ground roles such as division and sector commanders, heavy plant operators and managers, aviation roles, planning and conducting hazard reduction burning, chainsaw operation, first aid, tanker operators and safety advisors. (l) Specialist training is also provided for the specific roles that are required in Incident Management Teams. Each of these roles has a defined pathway with pre-requisite requirements before any individual can be trained. All of this training and roles are consistent with nationally accredited training where this has been developed and also consistent between the four NSW fire authorities. (m) Forests NSW staff will spend variable amounts of time with in direct fire fighting duties in any given fire season. Some Forests NSW staff have both fire control and fire prevention as key responsibilities of their work while other staff will be involved infrequently, primarily to assist with wildfire control. The level of involvement in any given year ultimately depends on weather conditions and if we have a serious wildfire season or if conditions are favourable to undertaking significant areas of hazard reduction burning. (n) Forests NSW staff when not regularly engaged with fire management roles resume their normal roles. Staff that are fit and able are expected to be trained and capable of participating in fire control operations. Forests NSW have approximately 500 staff, qualified to undertake fire fighting and fire management roles. (o) Forests NSW is one of four NSW Fire Fighting Authorities and operates under a range of legislative requirements in terms of managing fire. Two of the NSW Fire Authorities are emergency services as defined in the Rural Fires Act (i.e. the NSW Police Force, Fire Brigades, Rural Fire Brigades, Ambulance Service, State Emergency Service, Volunteer Rescue Association or any other agency which manages or controls an accredited rescue unit). Forests NSW is not an emergency service. (p) The main award applicable to employees of OEH - Parks and Wildlife when engaged in fire fighting activities is the Crown Employees (Office of Environment and Heritage - Parks and Wildlife) Conditions of Employment Award. Clause 29 of that Award sets out the conditions that apply when an "incident" is declared and which remain in force until the declaration of the incident is lifted. The Award defines "Incident" and Incident duties in Cl 3 as follows: "Incident" means an unscheduled activity such as wildfire suppression, wildlife rescue, flood and storm relief, search and rescue, cetacean stranding, accident and substance spill attendance, or as otherwise approved by the Chief Executive or delegate. (N.B. Does not include hazard reductions) "Incident duties" means all work involved in emergency incidents effort in which there is OEH participation from when an event is declared an incident until it is declared over by the Incident Controller. Duties may include: the initial reporting, reconnaissance, organisation of resources, control, mop-up, patrol to completion of incident duties, and may involve office duties in the organisation and direction of the emergency response as well as work at the scene. (q) The Crown Employees (Office of Environment and Heritage - Parks and Wildlife) Conditions of Employment Award provides for additional rates of pay to the following classifications of employees when engaged in an "Incident Position": (i) Crew Member; (ii) Crew Leader; (iii) Sector Commander; (iv) Divisional Commander; (v) Operations Officer; (vi) Planning Officer; (vii) Logistics Officer; (viii) Incident Controller; (ix) Deputy Incident Controller; (x) Safety Officer; (xi) Situation Officer; (xii) Situation Unit Officer; (xiii) Resource Officer; (xiv) Resource Unit Leader; (xv) Air Attack Supervisor; (xvi) Air Observer; (xvii) Airbase Manager. (r) The Crown Employees (Office of Environment and Heritage - Parks and Wildlife Group) Field Officers and Skilled Trades Salaries and Conditions 2012 Award covers Field Officers, Field Supervisors and Tradespersons. It contains extensive provisions regarding fire fighting in cl 27 not dissimilar to the provisions in the Crown Employees (Office of Environment and Heritage - Parks and Wildlife) Conditions of Employment Award. "Incident" and "Incident duties" in the Crown Employees (Office of Environment and Heritage - Parks and Wildlife Group) Field Officers and Skilled Trades Salaries and Conditions 2012 Award are defined in the same terms as the Crown Employees (Office of Environment and Heritage - Parks and Wildlife) Conditions of Employment Award. (s) The Flight Officers Enterprise Agreement 2012, which covers pilots employed by OEH has provisions relating to fire fighting similar to Crown Employees (Office of Environment and Heritage - Parks and Wildlife) Conditions of Employment Award. 80Relevant matters drawn from the applicants' evidence are as follows: (a) There are a number of positions in Forests NSW in addition to Forestry Field Officers that are required to fight fires as a core part of their duties. These include the following positions: (i) Operations Coordinator (Specialist); (ii) Resources Officer; (iii) Harvesting Team Leaders; (iv) Resources Team Leader; (v) Cultural Heritage Officer; (vi) Harvest Planners; (vii) Land Administration Officer; (viii) Value Recovery Officer; (ix) Harvest Planning Team Leader; (x) Contracts Administrator; (xi) Logistics Co-ordinator; (xii) Planning Manager; (xiii) Customer Liaison Officer; (xiv) Ecologist; (xv) Forest Information Officer; (xvi) Harvesting Manager; (xvii) Clerical Officers; (xviii) Operations Manager; (xiv) Operations Team Leaders. (b) A range of fire suppression strategies are utilised by Forests NSW depending on the prevailing fire, weather, environmental or fire risk conditions. These may include any or a combination of the following strategies: (i) monitor and wait for opportune time for suppression action; (ii) rapid deployment of resources to high risk fires; (iii) direct attack; (iv) parallel flank attack; (v) indirect attack - backburning from established fire breaks; (vi) fire breaks constructed by hand tools; (vii) fire breaks constructed by earthmoving machinery; (viii) application of chemical fire retardants & foams; (ix) aerial attack; (x) effective mop-up and patrol; (xi) post-fire rehabilitation works will be implemented, where required. (c) Duties performed by Forests NSW staff at a fire location include any or all of the following: (i) fighting the fire directly by pumping water out of the pump through hoses; (ii) using a rake-hoe to create a rake-hoe line to create a fire break; (iii) using a chain saw to fell trees and cut up burning logs; (iv) supervising a bulldozer putting a track around the fire to create a break; (v) lighting a back-burn from a track to indirectly fight the fire; (vi) directing aircraft to suppress escapes and hot-spots; (vii) employees of the Department will then finalise the mopping up afterwards including detecting hotspots and smouldering material up to 30 metres from the fire edge, cooling these by spraying water or foam, breaking up burning logs using a chainsaw, supervising a bulldozer pushing over burning or dangerous trees and patrolling the entire perimeter during hot/windy days. (d) Hazard reduction will usually entail driving out into the forest and using a "drip torch" (firelighting device filled with a petrol/diesel mix) to light up large areas of undergrowth or tree crowns/branches left after harvesting to create fire breaks by reducing the fuel loads. A chainsaw might also be used to cut down burning trees or clear fallen trees from roads, or a rake-hoe used to construct a containment line or squirt water to protect adjoining assets on private property. This is often referred to as "dry fire-fighting". Some staff travel in a helicopter to drop incendiary capsules inside the burn area perimeter. (e) OEH is a firefighting authority for the purposes of the Rural Fires Act. As such, under s 33D of the Rural Fires Act the Commissioner of the Rural Fire Service may delegate any function conferred or imposed on the Commissioner to the OEH or a member of staff of the OEH. When this occurs staff of OEH will be instructed to fight fires alongside the members of other firefighting authorities such as the Rural Fire Service. OEH staff also fight fires on National Park estates in their own right. (f) OEH firefighters not only fight fires in their own national parks, but also can be called to attend fires in any other national park within New South Wales if there is a need. For example, in 2003, approximately 2,000 people from across the State were involved in fighting fires in Kosciuszko. When there is a particularly bad fire in a particular national park, more and more employees of OEH will be called in from other national parks and all other work is suspended whilst the fire is being fought. All employees are involved. In addition, employees of OEH perform other roles that are high risk including search and rescue in remote areas, tree felling and dealing with dangerous animals. (g) The Crown Employees (Office of Environment and Heritage - Parks and Wildlife) Conditions of Employment Award applies to employees of OEH in the following classifications: (i) Trainee Ranger; (ii) Ranger; (iii) Senior Ranger; (iv) Assistant District Manager; (v) District Manager; (vi) Project/Research Officer; (vii) Field Officer (within Kosciuszko); (viii) Senior Field Officer (within Kosciuszko); (ix) Field Supervisor (within Kosciuszko); (x) Senior Field Supervisor (within Kosciuszko). (h) Employees in the above classifications are involved in firefighting in national parks across New South Wales. Firefighting, hazard reduction and fire prevention duties are major components of these roles. In addition, there are other employees of OEH, who are not covered by the Award, and who perform firefighting activities including Field Officers (outside of Kosciuszko), Senior Research Scientists and clerical and administrative staff. (i) Fire prevention and hazard reduction is a function that can be conducted by all employees covered by the Crown Employees (Office of Environment and Heritage - Parks and Wildlife) Conditions of Employment Award as part of their regular duties, and includes: (i) hazard reduction burns; (ii) the felling of trees with chain saws; (iii) the creation of fire barriers by the digging of a rake hoe line; (iv) the use of heavy machinery such as bulldozers; (v) use of helicopters to drop incendiary devices. (j) Employees covered by the Crown Employees (Office of Environment and Heritage - Parks and Wildlife) Conditions of Employment Award participate in remote area firefighting. This will include being taken to the remote site by helicopter and then being winched down to the fire or a location near the fire. For remote area firefighters fitness tests must be passed to the "arduous level". These remote area firefighters could be any employee of OEH who have completed the required training and who have met the "arduous" fitness requirement. (k) Remote area firefighters also need additional training as a result of being required to carry out their firefighting duties from an aircraft rather than off the back of a truck. (l) Remote area firefighters may be engaged in duties including the following when required to attend a fire: (i) cutting fire breaks; (ii) undertaking fire control activities in steep and difficult terrain, which may require walking long distances with heavy packs and equipment; (iii) creating helipads; (iv) calling in and directing aerial water bombers.

Approach to statutory interpretation 81Against the background of the evidence, the task is to construe the meaning of firefighter in item 25 of Pt 19H of Sch 6 of the 1987 Act. 82The approach to statutory interpretation was recently discussed in the Full Bench's decision in HSU east and Director-General, Department of Finance and Services [2012] NSWIRComm 112. In particular, the Full Bench referred to two recent High Court cases: Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 and Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 290 ALR 647 and was clearly guided by those authorities. In that respect, the Full Bench stated at [26]-[28]: [26] However, it is necessary to have regard to some recent authorities of the High Court of Australia regarding statutory interpretation. In Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27, French CJ, Hayne, Kiefel and Bell JJ stated at [26] - [28]: 26. The disposition of this appeal turns upon the correct construction of s 9(4). The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose. According to the construction adopted by the IRC and the Full Court of the Supreme Court, the power conferred by the subsection extended to the appointment of persons as teachers. On the construction for which the Union contends, the power did not extend to such appointments. 27. There are textual and purposive indicators to be considered in determining the preferred construction. Also applicable is s 22(1) of the Acts Interpretation Act 1915 (SA) which relevantly provides: "where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object." 28. The reasoning in the IRC was informed by the view that it was desirable that the Minister have flexibility in the appointment of teachers and that Pt III of the Act might be "unnecessarily prescriptive" in its application to the ad hoc appointments of relief teachers in diverse circumstances. This approach, with respect, emphasised a judicially constructed policy at the expense of the requisite consideration of the statutory text and its relatively clear purpose. In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose. The statutory purpose in this case was to be derived from a consideration of the scheme of the Act as a whole, the respective functions of Pts II and III of the Act, and the regulatory requirements of Pt IV of the Act. [27] In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, French CJ and Crennan, Gummow and Hayne JJ, generally agreeing in a separate joint judgment, observed at [41]: The question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the Fair Work Act. These provisions must be construed together in accordance with the principles of statutory construction established by this Court, which must begin with a consideration of the text of the relevant provisions and may require consideration of the context including the general purpose and policy of the provisions. [28] In addition, we have borne in mind ss 31(1) and 34 of the Interpretation Act 1987 as to the use of extrinsic material in the interpretation of a statute and, in particular, the provisions of ss 2(e), 2(f) and 2(h) respectively as to any explanatory note or memorandum and the speech made to a House of Representatives by a Minister moving that the Bill be read a second time.

Parties' contentions on meaning of "firefighter" 83The AWU submitted that, on its ordinary meaning, "firefighter" in item 25 referred to an occupational group or a class of employees and that it would encompass employees of the respondents who engage in firefighting duties as a core component of their role. As firefighting was a required part of their duties, something they regularly perform, that was sufficient to characterise them as firefighters, it was submitted. 84Reference was made to the dictionary definitions of firefighter and the fact that each of the respondents is identified as a "fire fighting authority" in the Dictionary to the Rural Fires Act and each has a comprehensive policy and procedure for fighting fires. 85The AWU submitted the fighting of bushfires itself, as well as a range of duties ancillary to such firefighting, was a core component of the role and duties of the relevant employees. That is, such employees were tasked with carrying out the respondents' statutory bushfire control responsibilities. In doing so, the employees worked alongside and in the same manner as persons from other fire control agencies, particularly the Rural Fire Service and, to a lesser degree, Fire and Rescue NSW. Thus, the relevant employees of the respondents were "firefighters" within the ordinary meaning of that term. 86Mr Hatcher SC for the AWU submitted: It is evident, having regard to the statutory context, that the purpose of item 25 of Part 19H of Schedule 6 was to preserve the pre-existing more beneficial workers compensation entitlements for certain high-risk occupational groups involved in the protection of public safety. In interpreting "firefighter" in a way which gives effect to this purpose (as required by s 33 of the Interpretation Act 1987), there is no basis for a distinction to be drawn between different categories of firefighters - e.g. between those who fight bushfires and those who fight structural fires, or between those who are employed by different government agencies to fight bushfires arising in different classes of locations. All such persons are involved in the same high risk occupation and act in the protection of public safety. Section 34 of the Interpretation Act permits the Court to take into consideration inter alia the record of Parliamentary debate concerning the legislative provision under consideration either to confirm that the provision bears its ordinary meaning, or where the provision is ambiguous or obscure in meaning, or where the ordinary meaning of the provision would lead to a manifestly absurd or unreasonable result. Here, the Parliamentary debate (relevantly, Mr Shoebridge's speech in support of his amendment) confirms that the ordinary meaning of "firefighter" was the meaning intended by the Parliament in adopting his amendment. In particular, the references to bush firefighting, and to persons fighting such fires alongside the Rural Fire Service, can only be directed at the employees of the Respondents the subject of this application. There is no warrant to read into item 25 words that would restrict the ordinary meaning of "firefighter", given that the application of the ordinary meaning of "firefighter" does not lead to any absurd or unreasonable result, but rather to one that is consistent with the statutory purpose and Parliament's evident intention. 87The PSA supported the AWU's submission regarding interpretation of the word "firefighter". In addition, it was submitted: (a) there is no reason to construe the term firefighter narrowly. Item 25 is clearly intended to be a beneficial provision and preserve existing entitlements for the nominated classes of employees. Such a provision should be read in accordance with its beneficial intent and not narrowly so as to defeat its operation: see, for example, Endeavour Coal Pty Ltd v CFMEU (2007) 161 IR 96 at [44]; (b) the suggestion that Item 25 operates only in relation to a firefighter when that employee is "actually engaged in emergency situations" or "directly involved in fire fighting duties" is inconsistent with the words used in the provision and would lead to nonsensical, unworkable and inconvenient consequences. Item 25 provides that the amending legislation does not apply "to or in respect of an injury received by a police officer, paramedic or firefighter". The ordinary meaning of the words used is that the amended legislation does not apply with respect to a person who is a "firefighter" in respect of an injury received by that person; (c) the words used in Item 25 are not susceptible to a construction which would have the effect of the amended legislation applying to some injuries received by a person who is a firefighter but not others. Nor are those words susceptible to a construction which would result in a person being a firefighter at one point in time, but not a firefighter at another point in time any more than a person could be a police officer or paramedic for some, but not all, of their employment; (d) it is clear from the parliamentary debate that the amendment is intended to operate with respect to classes of employees; (e) the approach suggested by the respondents would be unworkable, inconvenient and complex. For example, when would an employee be considered to be "actually engaged in an emergency situation" or "directly involved in fire fighting duties"? Does that standard require that the employee be actually holding a hose at the fire front? Is an employee "directly involved in fire fighting duties" if injured whilst travelling to a fire, working as part of the Incident Management Team, planning the response to a fire, preparing or maintaining fire fighting equipment or undertaking fire suppression or hazard reduction activities? The fact that Item 25 contains no answer to any of these questions makes clear that it is intended to apply to injuries sustained by a class of employees in the course of their employment; (f) an employee might also receive an injury for which compensation is payable other than in the direct performance of the duties associated with their employment. For example, one aspect of the amending legislation is that it has precluded compensation being recovered for journey claims, except for work, workers compensation or training related claims. Under the approach proposed by the respondents, would an employee be covered by the amended legislation if injured travelling to work on a day that the employee was or might be called upon to attend a fire incident? Again, the absence of any answer to that question in Item 25 demonstrates that the construction proposed by the respondents cannot be accepted. If, as suggested by the respondents, no travel would constitute being "directly involved in fire fighting duties", then the preservation of journey claims for firefighters was entirely otiose; (g) injuries or diseases sustained by employees in the course of their employment do not necessarily arise out of one identifiable accident or incident. How would an employee be treated if he or she sustained a psychological injury over a period of time in circumstances in which the employee had attended numerous stressful wildfire events, but also experiences stressors in his or her other duties which also contributed to the condition? Upon what basis would that employee be entitled to workers compensation payments or to recover medical expenses? The unworkable and inconvenient outcomes which might flow from the construction urged by the respondents demonstrate that it ought not be accepted; (h) any suggestion that Parliament had regard to the Forests NSW Crown Employees Fieldwork and Other Staff Award 2010-2012 when formulating Item 25 is unsupported by the Parliamentary debates. Secondly, the definition of "fire fighting duties" in the Award is used for a quite different purpose, principally the determination of on-call arrangements and the loadings and other entitlements accrued in that event. Thirdly, the definition in the Forests NSW Crown Employees Fieldwork and Other Staff Award 2010-2012 is not common to other awards. 88For the respondents it was submitted that an analysis relating to the Parliamentary debate concerning the movement of the amendment by Mr Shoebridge, which extended the categories of emergency workers who would be exempted to the general changes to workers' compensation benefits, gave a clear guide to the purpose and policy of the late inclusion into the exemption of "firefighters". This being, it was contended, to provide this group of employees who would be facing the same dangers from bushfires as other emergency personnel, and who could be working alongside such other emergency personnel, the same workers' compensation entitlements "in such difficult circumstances". 89In that context it was contended that the general purpose and policy of the provision in item 25 so far as it related to the exemption for "firefighters" was constrained by the temporal element of dealing with the emergency, and the functional element relating to the role of firefighting in the field in what may be described as an emergency or unplanned situation. 90Mr Benson, counsel for the respondents, submitted that whilst Forests NSW and National Parks and Wildlife Service were firefighting authorities for the purposes of the Rural Fires Act that was not their principal reason for existence. Each agency was primarily concerned with land management functions with the corollary in pursuing that purpose of protecting the land under their care from bushfires. 91Reference was made to OEH's Fire Management Manual and the definition of "firefighter" ("any employee, volunteer or agent of any fire fighting agency who occupies, or is dedicated, to undertake a role for the purpose of fire suppression") and "fire suppression" ("Actions to control a fire, from the time of detection to extinguishment".) It was submitted that the definitions indicated that the role of a firefighter as contemplated by the Manual were directed to actions to control fire (functional component) within a specified timeframe (the temporal component). The definition also lent weight to a close physical proximity between the employee undertaking the duties and the location of the fire needed to be brought under control and extinguished, it was submitted. 92The respondents also directed the Court's attention to various definitions in the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987. One of those was the definition of the word "fighting" as follows: "fighting", in relation to a bushfire, includes any reasonable act or operation performed by a firefighter at or about the scene of or in connection with a bushfire which is necessary or, directed towards, or incidental to, the control or suppression of the fire or the prevention of the spread of the fire, or any other way necessarily associated with the fire. 93The Court was referred to the definition of the term "fire-fighting duty" in the Forestry Commission Division trading as Forests NSW Crown Employees Fieldwork and Other Staff Award 2010-2012. That definition, cited earlier, excludes hazard reduction.

Consideration 94Item 25 of Pt 19H of Sch 6 of the 1987 Act provides that the amendments made by the 2012 amending Act do not apply to or in respect of an injury received by a "police officer, paramedic or firefighter ..." Thus, the 1987 Act exempts these occupations or employment categories as well as firefighters in rural fire brigades operating under the aegis of the Rural Fire Service, emergency service workers in the State Emergency Service and surf lifesavers. 95What these occupations have in common is that they are all associated with an emergency service. They may also be regarded as "high risk" occupations. 96Paramedics and firefighters were added following debate at the committee stage in the Legislative Council on 22 June 2012. They were added as a consequence of an amendment proposed by Mr David Shoebridge MLC, who regarded it as grossly unfair that firefighters and paramedics not be treated in the same way as other emergency service personnel with whom they would be working side by side. Mr Shoebridge argued: [P]olice have their benefits protected, Rural Fire Service personnel and State Emergency Service personnel have their benefits protected, but the other emergency service personnel, the firefighters and the paramedics, who will be working side by side with Rural Fire Service and State Emergency Service personnel - all of whom will be going to the same bushfires, or the same road trauma incidents, or to fight the same fires and dealing with the same consequences of emergencies throughout our city, country and regional areas - will not. 97There can be no doubt, for example, that a police officer designated as such under the Police Act 1990 or a firefighter who is a member of a fire brigade appointed under the Fire Brigades Act 1989 or a paramedic employed by the Ambulance Service of NSW, are covered by item 25. However, a firefighter in item 25 is not limited to a member of a fire brigade. The ordinary meaning of a firefighter is "Someone whose activity or employment is to extinguish fires, especially bushfires": Macquarie Concise Dictionary (Third Edition). Employees who are the subject of the Unions' applications in this matter who perform the work of a firefighter from time to time must come within the ordinary meaning of firefighter whilst they are undertaking the work of fighting fires; they are referred to and designated as "firefighters" by their employer whilst in that role. When they are undertaking that work no distinction can be made between them and a fire brigade firefighter or a volunteer rural firefighter. 98The rationale for including "firefighters" in item 25 was that they worked side by side with rural firefighters fighting the same fires. That is the case with employees of the respondents when they are undertaking firefighting duties. It would be, as Mr Shoebridge argued, "grossly unfair" to exclude employees of the respondents from item 25 when they are performing the work of firefighters. 99The reference to firefighter in item 25 is not limited to firefighters whose fulltime occupation is firefighting otherwise it would exclude persons who are members of a volunteer fire brigade under the Fire Brigades Act. There is no indication of a legislative intention to distinguish between permanent and volunteer fire brigades as defined in the Fire Brigades Act. 100The critical question is, however, whether the employees who are the subject of the applications are to be regarded as firefighters for the purpose of item 25 when they are not actually performing the work of firefighting, but rather they are performing the work for which they are employed for the major and substantial part of their employment, be it an Aviation Role Equipment Supervisor/Senior Air Crewman responding to floods or other relief work, a Ranger with responsibilities for noxious animal and weed management, a Supervising Forester supervising logging crews, an Area Manager whose primary responsibilities might include financial management, time management planning and managing staff, or an Operations Team Leader responsible mainly for the appropriate management of fire, pests and weeds. 101I am unable to accept that the purpose of including "firefighter" in item 25 was to exempt from the 2012 workers' compensation amendments, in respect of the whole of their employment, employees who perform the work of firefighting from time to time, but whose designated occupation or volunteer capacity is not that of a firefighter. A National Parks and Wildlife Ranger with responsibilities for noxious animal and weed management, for example, would not be referred to in normal discourse as a firefighter. He or she would only be regarded as a firefighter when engaged in fighting fires. 102It is apparent from the Parliamentary debate the purpose of extending item 25 to cover firefighters and paramedics was to exempt from the 2012 amendments only a small and select group of occupations that had in common the provision of emergency services and may be working side by side with each other attending to the same emergency. Whilst employees of the respondent may be regarded as providing an emergency service when they perform the work of firefighting, they are not engaged in providing emergency services or likely to be working side by side with other emergency workers when performing other work that comes within the ambit of their designated occupation of Ranger, Forester, Field Officer, Project Officer and the like. 103It may be accepted this conclusion brings with it some complications, as pointed out by the PSA, such as how one is to treat journey claims and psychological injuries. How are they to be addressed when the employee is covered by two different schemes? However, these complications are not new and may have to be dealt with on a case-by-case basis. For instance, under the Police Regulation (Superannuation) Act 1906 determinations have to be made whether a police officer received an injury which caused the infirmity of body or mind and whether that infirmity arose out of the officer being hurt on duty. If not, different superannuation entitlements apply. Procedures are in place to deal with such disputes, as they are in relation to disputes under the workers compensation legislation. 104The next issue is when is an employee of the respondents to be regarded as a firefighter for the purposes of item 25? In my opinion, they are to be regarded as a firefighter for the purpose of item 25 immediately they commence to perform firefighting duties and are no longer a firefighter when those duties cease. In order to be regarded as a firefighter the employee will need to be trained, medically fit and qualified by the relevant agency as a firefighter. 105That raises the question of what are firefighting duties? Where a firefighter who is a member of a fire brigade under the Fire Brigades Act is performing duties associated with firefighting, he or she will be exempted from the 2012 workers' compensation amendments if he or she suffers a personal injury arising out of or in the course of employment. A similar principle applies to members of rural fire brigades, although they are not employees. I cannot see any warrant for treating employees of the respondents differently. In other words, I cannot see why employees of the respondents, when performing firefighting duties, should not be exempt whilst they are undertaking hazard reduction, for example, when their rural firefighter counterparts doing that work would be exempt. Hazard reduction seems to me to be an integral part of the job of a firefighter. 106Accordingly, having regard to the evidence relating to the work associated with firefighting performed by these employees, it is my view that firefighting duties are duties performed by employees of the respondents who are trained, medically fit and qualified by the relevant agency as a firefighter, such duties being: (a) any reasonable act or operation performed by a firefighter either within or outside normal working hours at or about the scene of or in connection with a fire which is necessary or, directed towards, or incidental to, the control or suppression of the fire or the prevention of the spread of the fire, or any other way necessarily associated with the fire, and includes: (i) travel to and from the fire whether by road, air or on foot, surveillance of a running fire, mop-up (including logistical support, e.g., meal delivery, fuel delivery, field based repairs on plant and equipment in an active fire ground); (ii) aerial attack; (iii) application of chemical fire retardants and foams; and (iv) office duty performed directly in connection with the organisation and direction of the firefighting effort. (b) duties performed either within or outside normal working hours in connection with tasks necessary to prevent or reduce the risk of fire (including travel to and from the site at which the duties are to be performed), such duties being: (i) hazard reduction including burning, felling trees, fire trail maintenance and the creation of fire barriers using machinery or hand tools, use of aircraft to drop incendiary devices; and (ii) fire stand by duty and fire detection (both fire tower operation and mobile fire patrol). 107It is important that some precision is applied in determining when employees are firefighters for the purposes of item 25 of Pt 19H of Sch 6 to the1987 Act. The approach I have adopted is that it shall be following receipt by them of advice from an authorised person that they are to undertake firefighting duties (as defined) and when they commence to do so. The employees shall cease to be firefighters for the purpose of the workers' compensation exemption following advice from an authorised person to them that firefighting duties are no longer required and immediately upon the employees ceasing to perform firefighting duties.

Orders 108The Court orders and declares pursuant to s 154 of the Industrial Relations Act 1996 that: (1) Persons employed by the Government of New South Wales who perform firefighting duties (as defined in order (2)) as part of their work for the Department of Premier and Cabinet, Office of Environment and Heritage or Department of Trade and Investment, Regional Infrastructure and Services, Forestry Commission of NSW Trading As Forests NSW (and any of their successor entities) and whose employment is covered by: (a) the Crown Employees (Office of Environment and Heritage - Parks and Wildlife) Conditions of Employment Award; (b) the Crown Employees (NSW Department of Trade and Investment, Regional Infrastructure and Services) Forests NSW - Forestry Field Officers Award; (c) the Crown Employees (Administrative and Clerical Officers - Salaries) Award 2007; (d) the Crown Employees (NSW Department of Trade and Investment, Regional Infrastructure and Services) Professional Officers Award; (e) the Crown Employees (Office of Environment and Heritage - Parks and Wildlife Group) Field Officers and Skilled Trades Salaries and Conditions 2012 Award; (f) the Office of Environment and Heritage (NSW) Flight Officers' Enterprise Agreement 2012; or (g) the Forestry Commission Division Trading As Forests NSW Crown Employees Fieldwork and Other Staff Award 2010-2012; and any successor instruments ("the Employees") are "firefighters" for the purposes of item 25 of Part 19H of Schedule 6 to the Workers Compensation Act 1987, provided that the Employees are only "firefighters" for such purposes whilst they are performing firefighting duties in accordance with orders (2) and (3) hereof. (2) For the purposes of order (1) hereof "firefighting duties" are those duties performed by the Employees who are trained, medically fit and qualified by the relevant agency as a firefighter, such duties being: (a) any reasonable act or operation performed by a firefighter either within or outside normal working hours at or about the scene of or in connection with a fire which is necessary or, directed towards, or incidental to, the control or suppression of the fire or the prevention of the spread of the fire, or any other way necessarily associated with the fire, and includes: (i) travel to and from the fire whether by road, air or on foot, surveillance of a running fire, mop-up (including logistical support, e.g., meal delivery, fuel delivery, field based repairs on plant and equipment in an active fire ground); (ii) aerial attack; (iii) application of chemical fire retardants and foams; and (iv) office duty performed directly in connection with the organisation and direction of the firefighting effort. (b) duties performed either within or outside normal working hours in connection with tasks necessary to prevent or reduce the risk of fire (including travel to and from the site at which the duties are to be performed), such duties being: (i) hazard reduction including burning, felling trees, fire trail maintenance and the creation of fire barriers using machinery or hand tools, use of aircraft to drop incendiary devices; and (ii) fire stand by duty and fire detection (both fire tower operation and mobile fire patrol). (3) Employees referred to in order (1) are firefighters for the purposes of item 25 of Part 19H of Schedule 6 to the Workers Compensation Act 1987, following receipt by them of advice from an authorised person that they are to undertake firefighting duties (as defined in order (2)) and immediately upon the Employees commencing to do so. The Employees shall cease to be firefighters for the purposes of item 25 of Part 19H of Schedule 6 to the Workers Compensation Act 1987 following advice to them from an authorised person that firefighting duties (as defined in order (2)) are no longer required and immediately upon the Employees ceasing to perform firefighting duties.

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: 29 November 2012