The Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Rural Fire Service of NSW

Industrial Relations Commission (NSW)|2021-09-03

decision

On 12 July 2021, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (the PSA) lodged a dispute notification pursuant to s 130 of the Industrial Relations Act 1996 (NSW) (the Act) in respect of the denial of a request of Mr Kenneth Neville for 12 month leave (the Request) by the Rural Fire Service of NSW (the respondent).
Mr Neville is a long serving employee of the respondent, currently employed in the position of District Manager - Mid-Lachlan Valley. This is a senior position within the respondent's operations, leading six (6) other employees of the respondent, and around 2,800 volunteer members.
The notifier seeks that the Commission make the following orders by way of relief in the matter: 1. In accordance with s175 of the Act, the Commission finds that clause 69 requires the respondent to grant an application for leave in accordance with the wishes of the staff member unless its operational requirements do not permit the leave to be taken. 2. The Commission finds that in relation to Mr Neville there are no operational reasons that do not permit the leave to be taken. 3. In accordance with s136(1)(a) of the Act the Commission recommends that the Respondent approve Mr Neville's request for 12 months' leave.
Although I have decided not to grant the relief sought by the notifier, I have determined that is appropriate to exercise my discretion to make a recommendation pursuant to s 136(1)(a) of the Act in the following terms: 1. The respondent reconsider Mr Neville's Request at the conclusion of the expression of interest process EOI21/28.
My reason for this decision follow.

Evidence and submissions

The applicant relied upon the evidence of Mr Neville and Ms Favelle. Ms Favelle described herself as being second-in charge in the Mid-Lachlan Valley District, second to Mr Neville. Both Mr Neville and Ms Favelle attested to the truth of two witness statements each, one in chief and the other in reply to evidence of the respondent. The respondent cross-examined Mr Neville and Ms Favelle at the hearing.
The notifier relied upon an outline of written submissions filed 11 August 2021 (referenced as NS in this decision) and an outline of written submission in reply filed 2 September 2021 (references as NSR in this decision).
The respondent relied upon a written statement of Mr Tim Butcher, Area Commander of the Western Area of New South Wales for the respondent, dated 27 August 2021. Mr Butcher was not required for cross-examination by the respondent. Mr Butcher attested the truth of his statement before the Commission and responded to questions posed by the bench at the hearing and gave some short additional evidence in chief.
The respondent relied upon written submissions dated 27 August 2021 (referenced as RS in this decision). Both parties addressed the Commission with closing submissions at the hearing.
I have considered the parties evidence and submissions in detail below.

Relevant Award provisions

Mr Neville's employment is subject to the Award which relevantly provides at clause 70: 70. Extended Leave Extended leave shall accrue and shall be granted to employees in accordance with the provisions of Part 2, Division 3, Clause 16 Extended leave entitlements and Schedule 1 Public Service extended leave entitlements of the Government Sector Employment Regulation 2014.
Clause 69 of the Award provides: 69. Applying for Leave 69.1 An application by a staff member for leave under this award shall be made to and dealt with by the Department Head. 69.2 The Department Head shall deal with the application for leave according to the wishes of the staff member, if the operational requirements of the Department permit this to be done. (emphasis added)
The respondent contended that Mr Neville's application for extended leave is not made under the Award as per clause 69.1 because the entitlements to the leave are derived from the Government Sector Employment Regulations 2014 (the Regulations). This is an argument to which I will return.
Clause 9 of the Award provides for the resolution of disputes. Relevantly, it states: 9.9 The staff member or the Association on their behalf or the Department Head may refer the matter to the New South Wales Industrial Relations Commission if the matter is unresolved following the use of these procedures. 9.10 The staff member, Association, Department and Secretary shall agree to be bound by any order or determination by the New South Wales Industrial Relations Commission in relation to the dispute.
The Commission in this matter is called upon to interpret the Award. Although not set these out in this decision, I acknowledge and have applied the oft quoted principles distilled by Walton J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] 87 NSWLR 41 at [115] in interpreting the Award.

Is Mr Neville's request for leave a dispute under the Award and/or about clause 69 of the Award?

The respondent contended that the Request was not a request for leave "under the Award" as referred to in clause 69.1, and accordingly there was no obligation upon the respondent to grant the leave in accordance with clause 69.2, namely if the operational requirements of the respondent permit this: RS at [7]-[13]. It was by extension submitted that the dispute resolution processes provided for in clause 9 of the Award do not apply to the dispute.
The respondent argued that the words of clause 70 of the Award make clear that the entitlement to the leave sought is derived from the Regulations and therefore stands in contrast to other forms of leave derived from the Award itself, such as parental, family and recreation leave.
In my view, the entitlement to extended leave as provided for in the Regulation is incorporated into the Award and is enforceable as such pursuant to clause 70. This is consistent with the terms of clause 70 which creates an entitlement to the relevant leave, actionable as a term of the Award. It is not uncommon for awards both in the State and Federal context to incorporate entitlements with reference to legislation. For example, this is often the practice adopted by parties with respect to superannuation entitlements derived from the Superannuation Guarantee (Administration) Act 1992 (Cth). As submitted by the notifier, support for this interpretation can also be found in the approach of the Federal Court in allowing the incorporation of policy documents into the contract of employment in Goldman Sachs JB Were Services Pty Limited v Nikolich (2007) 163 FCR 62 and BHP Iron Ore Pty Ltd v Australian Workers' Union & Ors (2000) 171 ALR 680 and this Commission in Burgess and Ors v Mount Thorley Operations Pty Ltd [2003] NSWIRComm 432 and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Director of Public Employment [2011] NSWIRComm 152. This interpretation is also consistent with the principles of beneficial interpretation which apply generally to the interpretation of awards: see George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at pp 503-50; Re State Rail Authority Firefighters Award 2001 (2002) 122 IR 13 at [22]-[24]; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [57]; Endeavour Coal Pty Ltd v CFMEU (2007) 161 IR 96 at [44].
Mr Neville has a right to seek extended leave under the Award and enjoys the benefit of the terms of clause 69.2 which provide that his request will be granted if operational requirements permit this. It follows that the dispute resolution clause of the Award applies and the matter is properly before the Commission for resolution.

Does the Commission have jurisdiction to make a direction or order of the type sought by the notifier?

In the dispute notification, the notifier sought relief in the form of a direction in the following terms: "In accordance with cl 69.2 of the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009, the Respondent is to approve Mr Neville's request for 12 months extended leave from 27 August 2021 until 27 August 2022."
The form or relief sought was confirmed in the notifier's outline of submissions: NS at [37]. The respondent objected to the relief sought by the notifier in the respondent's outline of submissions in reply for reasons including that: (a) The Commission has no jurisdiction to make a "direction or order" of the kind sought; and (b) The approval or rejection of the application for leave is quintessentially a matter of managerial prerogative and the Commission would not intervene except in the case of clear injustice.
In its submissions in reply filed the day before the hearing of the matter, the applicant amended the form of the relief it sought as follows (NSR at [13]): "To avoid doubt, the PSA submits that, should the Commission find in favour of the PSA's contentions in this matter then the formal order it makes should be in the following terms: a. In accordance with s175 of the Industrial Relations Act 1996 (the Act) the Commission finds that clause 69 requires the Respondent to grant an application for leave in accordance with the wishes of the staff member unless its operational requirements do not permit the leave to be taken. b. The Commission finds that in relation to Mr Neville there are no operational reasons that do not permit the leave to be taken. c. In accordance with s136(1)(a) of the Act the Commission recommends that the Respondent approve Mr Neville's request for 12 months' leave."
The respondent objected strongly to the amended form of relief sought by the notifier. In particular, the respondent expressed concern that the form of the relief sought by the notifier may be considered binding. The respondent argued that this caused a material prejudice because had it known that this was the form of relief sought, the respondent may have approached the matter differently. In particular, counsel for the respondent objected strongly to the notifier referencing clause 9.10 of the Award in final submissions as set out above at [22].
I can see no unfairness in making a recommendation for relief that I have deemed appropriate in this matter. The parties to the Award are the Industrial Relations Secretary and the notifier (clause 4). Clause 5 of the Award states, "the current common conditions of employment as negotiated by the Industrial Relations Secretary and the [notifier]". The terms of clause 9.10 are the outcome of a negotiated process of the parties to the Award. Clause 9.10 operates on its terms whether it is relied upon by the notifier in these proceedings or not. It was clear from the commencement of the proceedings that the notifier was seeking a binding determination from the Commission, albeit the initial form of that relief (a binding direction) was abandoned after the respondent objected to it through their submissions in these proceedings.
The Commission has at all times a discretion to order relief to the parties in the form that it deems appropriate, although the principles of natural justice may dictate the need to provide the parties with an opportunity to be heard with respect to the form or relief contemplated. I am of the view that the respondent was given a fair opportunity to answer the merits of the notifier's contentions and the form of relief that should or should not be ordered by the Commission in these proceedings. The objection of the respondent that the respondent may have approached the proceedings differently had they known that the relief may be binding is not a reason to refrain from ordering any relief in these proceedings.

The merits of the claim: Are there "operational requirements" preventing the respondent from acceding to the Request?

In my view, there is some merit to the respondent's argument that the assessment of the operational requirements of the respondent and the merits of the expression of interest for the backfilling of the role of District Manager falls within the expertise and operational management of the respondent. However, I have decided that it is appropriate and consistent with the object of the Act to determine this matter on its merits to give finality and certainty to the parties in the proceedings.
The right conferred upon employees pursuant to clause 69.2 is that they will be entitled to the leave they apply for, unless there are operational requirements that preclude the leave being granted. I agree with the notifier's submissions that the test to be applied is not one of reasonableness, but rather, there is an assumption the leave will be granted unless the respondent establishes that there are operational requirements that prevent Mr Neville from taking the leave that he has requested: NSR at [25].
The phrase "operational requirements" is not defined in the Award, although it is familiar language within the context of workplace relations in Australia. The notifier helpfully referred the Commission to a number of decisions where the phrase has been considered by this Commission and the Fair Work Commission, particularly in the context of s 389 of the Fair Work Act 2009 (Cth) (FW Act) relating to whether a termination has occurred due to a genuine redundancy.
Within the Fair Work Commission, the phrase has been considered in the context of whether there has been a change in operational requirements which has necessitated the termination of employment. In Amy Greene v Floreat Hotel [2021] FWC 2198, Deputy president Binet stated at [99]: "[99] The FW Act does not define the term "operational requirements". It is a broad term that permits consideration of many matters including the state of the market in which the business operates and the application of good management to the business."
The Industrial Court of Australia which considering a similar provision to the FW Act contained in the Industrial Relations Act 1988 (Cth) in Nettlefold v Kym Smoker Pty Ltd [1996] IRCA 495 (per Lee J) stated: "The Act does not define the term "operational requirements". Obviously it is a broad term that permits consideration of many matters including past and present performance of the undertaking, the state of the market in which it operates, steps that may be taken to improve the efficiency of the undertaking by installing new processes, equipment or skills, or by arranging for labour to be used more productively, and the application of good management to the undertaking. In general terms it may be said that a termination of employment will be shown to be based on the operational requirements of an undertaking if the action of the employer is necessary to advance the undertaking and is consistent with management of the undertaking that meets the employer's obligations to employees."
I agree the phrase "operational requirements" is a broad term which encompasses a wide variety of matters. It is wide enough to include consideration of good management practices and that which is required to advance the employer's undertaking effectively. A matter may be an operational requirement, even if it is not strictly needed for the enterprise to function. Sometimes, the operational needs of a business will be clear and unambiguous, such as the requirement for critical staff to be available to assist with New Years Eve celebrations and electrical maintenance on New Years Eve (see Secretary of the Department of Transport (in respect of Roads and Maritime Services) v Construction, Forestry, Mining, and Energy Union, New South Wales Branch [2018] NSWIRComm 1038) or where an employee needs to be available to facilitate the opening hours of a small office (see Ingersoll v JRS Pty Limited [2005] NSWIRComm 1195). However, there may be some ambiguity as to whether a particular decision or action can be defined as arising from an operational requirement, for example, where it involves a decision relating to implementing best management practices. The operational requirements of a particular business will be peculiarly within the knowledge of the business enterprise itself.
As the person who made the decision to decline the request, Mr Butcher gave evidence in respect of what her perceived to be the operational requirements which led to his decision to decline the Request.
In his evidence, Mr Butcher provided background to the Western Area Command of operation and the roles of District Managers such as Mr Neville. At [9] -[17] of exhibit R1, he states: "9. District Managers are the most senior NSWRFS employees in their district, and are responsible for the general management of NSWRFS activities, employees and volunteers within their district. 10. The District Manager role is unique and complex. The role requires the individual to hold the relevant practical experience, leadership and managerial skills, and operational expertise. District Managers need to understand NSWRFS policies, standards, systems and procedures and to be able to communicate them to the communities in their district. To be able to do so, they need an understanding of their communities, the local business calendar of events and local priorities. Operationally, District Managers require a comprehensive understanding of managing fire emergencies as well as requirements of providing day to day response by volunteers to fire and other incidents. 11. District Managers are also typically the Fire Control Officer for their district and they have statutory responsibilities pursuant to the Rural Fires Act 1997 (NSW). 12. Over and above their specific duties and responsibilities, District Managers provide leadership and guidance for their small team of NSWRFS employees and large team of NSWRFS volunteer members. Within the NSWRFS framework and in the community, District Managers are in a position of significant influence. District Managers who are familiar with the community and its history, understand its needs, and are accepted by its people have a greater ability to implement NSWRFS services than District Managers who do not understand, or are not known and trusted by, the community. 13. District Managers are the direct supervisors of staff in their district. This means direct supervision and management of somewhere between 6 and 12 staff. NSWRFS staff are typically ex-volunteer members, often of long standing, who have strong views about the way NSWRFS should operate and the way its various operational challenges should be met. 14. District Managers are also responsible for liaising with and in a sense supervising the volunteer leadership, being the Brigade Captains who lead each volunteer brigade and the Group Officers who lead a group of brigades. This is in some ways more challenging than managing employees because the Group Officers and Brigade Captains, and ultimately the brigades, have a large degree of autonomy. Unlike employees they cannot be simply directed to do things, and in practice, they do not all work under a single set of rules. This requires leadership, not just issuing instructions. 15. The leadership of District Managers sets the tone, tempo and direction for their district and the brigades within it. It is important that District Managers provide a framework for positive communications with their senior leadership team of Group Officers and Captains, and have open and frank debates with them. There are often important and difficult issues to be negotiated between the District Manager and the leadership of various brigades. They might include, for example: (a) infrastructure and equipment issues, such as deciding which brigades receive new fire trucks, or what sheds and facilities which are built, in what priority, for a particular brigade or community; (b) incident management procedures including how many firefighters and appliances are sent to an incident or a type of incident under certain climatic conditions; and (c) the allocation of work and responsibility to different brigades, including for example whether a particular brigade will respond to all incidents (e.g. motor vehicle accidents, flood and storm incidents, traffic management, and general assistance (such as at COVID-19 testing clinics)) or only fires. 16. These can be complicated and contestable issues where various brigades and various individuals have different interests and different views. There is a real challenge in negotiating these issues with brigades and doing so in a way which maintains trust and cooperation between the volunteer brigades and between the brigades and NSWRFS staff. District Managers are key to that process. 17. As leaders of their respective district, District Managers hold the most influence in terms of setting the tone of all internal NSWRFS dealings concerning their district, and more broadly all external NSWRFS interactions with their community. In my view, no other position in NSWRFS has that degree of influence over the effective operation of the NSWRFS within a district, not even the Commissioner."
The evidence of Mr Butcher left little doubt that the role occupied by Mr Neville is multifaceted, complex and important in the context of the critical functions performed by the respondent. That does not mean that only Mr Neville can occupy the role effectively, but I am satisfied that it is an operational requirement that any person who does for an extended period needs to have the appropriate skills and experience for the job.
Mr Butcher gave evidence that because of the remoteness of the Western Area Command, it is difficult to fill positions, particularly on a temporary basis. He explained that this issue is made more difficult by the challenging requirements of the District Manager position and the need to find the right candidate for the role: Ex R2 at [18]-[19]; [21].
Mr Butcher deposed that there is a significant difference between filling a District Manager role for a short time of up to three months compared to a longer period, the second most senior person in a District may not be qualified to occupy the role on a long term basis and that when they do, this can cause issues with respect to backfilling that persons role, leaving the person acting up to effectively do two roles: Ex R2 at [24]-[28].
Mr Butcher stated in his evidence that the operational response of the respondent can be significantly affected when a district is being led by an acting District Manager as they often do not have the experience and knowledge to manage large campaign fires and complex fires and incidents. He gave evidence that the respondent particularly draws on the expertise of the District Managers during the fire season, to lead its various districts and achieve overall protection for the community: Ex R 1 at [30].
Mr Butcher's evidence was that because of the difficulties in effectively backfilling the roles, since 15 October 2018, he has taken the approach that he will not approve a single block of leave longer than three months for a District Manager: Ex R1 at [33].
In addition to the matters referred to above, Mr Butcher expressed concern in his evidence about the uncertainty the extended leave would place on Mr Neville's team and the District. He also gave evidence with respect to how his absence would have a negative effect on operational capability, noting the current approved leave enables Mr Neville to be present for the majority of the fire season. Mr Butcher also noted the impact of the loss of Mr Neville's leadership, especially as he has indicated he may retire at the end of the period of leave and how this may result in more than one change in leadership within the twelve month period: Ex R1 at [34] -[42].
The notifier argued that the respondent has not demonstrated that there are operational requirements precluding Mr Neville from being granted the leave that he has sought. They submitted that at best the considerations put forward by Mr Butcher can be described as a preference that Mr Neville not take his extended leave: NSR at [32].
The notifier submitted that Ms Favelle is a suitably qualified person to backfill Mr Neville during the relevant period. It was not in contest that Ms Favelle is a highly valued employee of the respondent and that she is willing to backfill Mr Neville's position whilst he takes the leave he has requested. Ms Favelle has acted in the applicant's role on many occasions, ranging from several days to several weeks at a time. However, Ms Favelle agreed under cross-examination that the longest she had acted in Mr Neville's role on any given occasion was 38 days: see Tcp 3 September 2021, at p 17 (42). Ms Favelle is currently acting in the District Manager role whilst Mr Neville is on leave.
Ms Favelle provided a short outline of her qualifications and employment history with the respondent at [3]-[10] of Ex A3. Ms Favelle has occupied the role of District Coordinator since 2013, initially in the Far West Team before transferring to the Mid-Lachlan Valley Team in 2016.
With respect to the proposition that Ms Favelle could backfill Mr Neville's role, Mr Butcher gave the following evidence at [52]-[56] of Ex R1: "I have explained above the reasons why filling a District Manager's role for 12 months it is not simply a matter having the next most senior position step up, and why filling in to do the job for short stints is not the same as doing it for long periods. For the reasons I explained, the fact that Robyn has occasionally filled in for short periods does not mean that she is capable of occupying the role for 12 months. Robyn is a capable and valued NSWRFS employee, but her experience and capability is not comparable to Ken's. For example, Ken has a large amount of experience as an incident controller. Robyn is not to my knowledge an incident controller for large and complex incidents and has not done the incident controller major incident course. The bulk of Robyn's experience has come in the Far Western District. Robyn did a great job there, but that District has its own unique set of challenges which are not necessarily applicable elsewhere. Those challenges are specific to the area and often relate to the tyranny of distance and the difficulties in getting resources and people to the fireground and accommodating people and so on. It is also a different sort of firefighting to what is done in the Mid-Lachlan Valley District due to differences in scale, vegetation, rainfall, weather conditions as well as due to human factors. In any case, if Ken's role was to be filled for 12 months it would not simply be a matter of my deciding that Robyn should step into the job. A recruitment panel would need to be formed and a call for expressions of interest made. The panel would then assess the candidates and make a recommendation to the Commissioner who would decide who should take the position."
In reply, Ms Favelle gave evidence at [53] of Ex A4: "a. Although I have not completed that Incident Controller - Major Incident course, I have completed the Incident Controller course and accordingly I am a qualified incident controller. b. Although I have not been an incident controller for large and complex incidents, I have been the deputy incident controller for large and complex incidents. The deputy incident controller is the second-in-charge of a declared incident under s 44 of the Rural Fires Act 1997 (NSW). c. Most recently, I was the night deputy incident controller during the 2019 - 2020 bushfire season at the declared incident at Mudgee, NSW where a number of homes were destroyed. As the night deputy incident controller, I undertook the duties of the incident controller as the incident controller was off-shift."
Under cross-examination, Ms Favelle gave evidence that shortly after 5 pm the day prior to the hearing, she was informed that she had been unsuccessful in a process to be included in a Talent Pool for the position of District Manager. Mr Butcher was not a part of the panel of decision makers who determined the outcome of that process.
As stated above, I accept that it is an operational requirement that Mr Neville's position it backfilled by a suitably qualified person. I am of the view that the evidence of Mr Butcher is a sufficient basis upon which to accept that there are operational requirements that prevent Mr Neville's leave being granted. Having carefully considered the evidence of the parties, I have formed the view that the Commission does not have a sufficient evidentiary basis upon which to find that Ms Favelle is an appropriate candidate to backfill Ms Neville's position for the duration of 12 months leave sought by him. I agree with the respondent that the fact of Ms Favelle has backfilled in the position for many shorter periods does not mean that she is suitable to backfill the position on an extended basis.
I note that there is currently an outstanding expression of interest for the backfilling of Mr Neville's role given the existence of these proceeding. It may be that there is a suitable candidate identified from that process or indeed, available from the Talent Pool established through the process recently concluded for the position of District Manager. Given Mr Neville's long service with the respondent and the reasons he has given for the Request, it would be appropriate in my view that the respondent re-consider the Request at the conclusion of the expression of interest process. In making this recommendation, I am conscious that the operational issues raised by the respondent can not all be overcome by the identification of a suitable candidate to backfill the District Manager role. However, it may be that the identification of a suitable candidate will significantly mitigate the concerns raised by the respondent in these proceedings sufficient to satisfy it that the operational requirements do not prevent the Request from being granted.

Recommendation

The Commission makes the following recommendation pursuant to s 136(1)(a): 1. The respondent reconsider Mr Neville's Request at the conclusion of the expression of interest process EOI21/28.

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: 20 September 2021

Industrial Relations Act 1988(Cth)

Rural Fire Act 1997(NSW)

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Judgment (9 paragraphs)

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Legislation Cited (7)

Cases Cited (11)