United Firefighters Union of SA Inc v Chief Executive, Attorney-General's Department [2025] SAET 43

2. The respondent is to pay interest on all arrears of travel allowance due under cl 15.5.3 of the Award and cl 17 of the Enterprise Agreement in respect to travel undertaken since 1 August 2024, where such arrears payment has been made more than one fortnightly pay period after the entitlement accrued, within 56 days of today's date, at the pre-judgment interest rate in the UCR 182.3(2)(a) (7% per annum).

3. The respondent is to provide in writing to the Tribunal and to the applicant within 28 days the following:

3.1 its assessment of the ongoing staff commitment, expressed by reference to FTE (full time equivalent) required to maintain the accurate payment of travel allowance within one fortnightly pay period of the entitlement accruing; and

3.2 the arrangements it has made to dedicate that staff commitment to the task of maintaining accurate and timely payment of travel allowance, including the identification of the classification and location of the employee or employees who have responsibility for that task.

1. The applicant in this matter, the United Firefighters Union of SA Inc ('the UFU') sought orders under s 12 of the Fair Work Act 1994 ('the FWA') to remedy and restrain contraventions by the South Australian Metropolitan Fire Service ('the SAMFS') of the Firefighting Industry Employees (South Australian Metropolitan Fire Service) Award 2007 ('the Award') and the South Australian Metropolitan Fire Service Agreement 2022 ('the Agreement').
2. Section 4A(1) of the FWA provides that the employer of public employees is the body or person declared by the regulations to be the employer. Section 4A(2) confirms that this person is an instrument of the Crown and capable of binding the Crown in an industrial matter. Currently, and for the purposes of these proceedings, that person is the Chief Executive of the Attorney-General's Department and consequently the respondent.[1]
3. However, the contraventions that are the subject of these proceedings are the result of conduct within the SAMFS.
4. The contraventions are admitted by the respondent, and the question before me was limited to the appropriate orders in response to those contraventions.

1. The circumstances of the contraventions are unusual and somewhat surprising for a government agency that one might reasonably assume to have allocated administrative resources equal to the task of paying its employees their legal entitlements as and when they fall due.
2. It is worth recounting these unusual circumstances, to understand what went wrong and the inadequacy of the response by the SAMFS senior management to fixing it even though SAMFS was not meeting its legal obligations to its employees.
3. Operational officers of the SAMFS, who I will simply refer to as firefighters, are entitled under cl 15.5.3 of the Award and cl 17 of the Agreement to the payment of travel allowance in particular circumstances which are commonplace. This allowance was, until August 2024, reliably paid to them in their fortnightly salary payment following the travel that they had undertaken.
4. In August 2024, the allowances simply stopped being paid, without any notice or explanation to the firefighters who suddenly found the pay arriving in their accounts to be less than expected.
5. Upon investigation, senior management of SAMFS found that in August 2024, one firefighter retired and shortly thereafter, another took extended unexpected leave on medical grounds. These two officers had between them been processing the travel allowances payable to their fellow firefighters. When they left, no-one else picked up the task.
6. SAMFS senior management was surprised to find out only then that the payment of these allowances required manual data input and was not automated via the rostering system known as Sapphire, which had been introduced some years earlier. It was then faced with the task of clearing a significant backlog of arrears payments and reestablishing a system for the ongoing processing of these entitlements.
7. The failure to pay these travel allowances is in each case a contravention of cl 17 of the Agreement and cl 15.5.3 of the Award.
8. At the time of the current application by the UFU, the SAMFS was still in arrears of these payments and thus still in contravention of the Agreement and the Award.

1. The UFU application was filed on 11 March 2025 and referred for conciliation, which failed to resolve the dispute. It was then referred to me on 8 April 2025 for an urgent hearing. At a directions hearing on 11 April 2025, I listed it for hearing for at 2.30pm on 16 April 2025.
2. The UFU argued that the current application was necessary because the contraventions were ongoing. Although the SAMFS had taken action late in 2024 to start back paying the firefighters, this still did not include all eligible firefighters, there were significant errors, no interest was paid on the back pay and a system to pay in a timely and accurate manner in the future was not yet in place, now eight months after the contraventions commenced.
3. Shortly before this directions hearing, the UFU filed draft proposed orders. The respondent indicated that it did not consent to those proposed orders. However, as the contraventions were admitted, I made no directions in relation to the filing of evidence.
4. Nonetheless, shortly before the hearing the respondent filed and served and then sought to have admitted into evidence the affidavit of Ms Prema Osborne, an Executive Director of the SAMFS, dated 16 April 2025.[2]
5. At the hearing I gave the UFU the option of adducing evidence in chief, but this was declined, the UFU opting to proceed with the matter on the admissions made by the respondent but with the opportunity to cross-examine Ms Osborne. On that basis, I admitted the affidavit of Ms Osborne.[3]
6. The hearing was adjourned part heard and reconvened at 2.30pm on Thursday 17 April 2025.
7. At the commencement of the hearing, the respondent indicated that it would not oppose orders for the payment of arrears to be finalised within a specified timeframe, and it would not oppose an order for the payment of interest on the arrears, also within a specified timeframe. However, it opposed an order as proposed by the UFU that it be required to conduct an audit of the travel allowance payments due since 1 August 2024.
8. The timeframe proposed by the respondent for finalising the back pay and paying interest on arrears was significantly longer than that sought by the UFU. The respondent was initially willing to consent to orders for backpay to be paid within 42 days and interest within 90 days. Later in the hearing it indicated that it could meet an order for arrears payments within 35 days and interest within 60 days. The UFU remained committed to backpay within 28 days and interest within 42 days.
9. The UFU also sought an order in general terms that "the respondent take all reasonable steps to put in place processes to enable travel allowance payment to be made in the pay period in which the entitlements arise". At the recommencement of the hearing on 17 April 2025, I gave the parties the opportunity to comment on the order I was considering in preference to the wording put forward by the UFU. Neither the UFU nor the respondent objected, and that form of words became Order 3 that I made that night.
10. The part of the UFU application that was most in dispute was the application for an order that the SAMFS conduct an audit, which was requested by the UFU in the following terms:
    1. the respondent arranges an audit of:

4.1 the entitlement to travel allowance of each of its employees; and

4.2 the payment in respect of travel allowance to each of its employees, in the period from 1 August 2024 to the date of these orders;

1. the respondent provides to each employee notice of the result of the audit as it pertains to that employee, and the amount that it proposes to pay that employee as a result of the audit, inclusive of interest;
2. the respondent provides to the applicant notice of the result of the audit as it pertains to each employee, and the amount that it proposes to pay each employee as a result of the audit, inclusive of interest;
3. the respondent paid [sic] to each employee the amount referred to in paragraph 5 of these orders within 14 days of providing to the employee the notice referred to in paragraph 5.
4. in the event that there is any dispute regarding the amounts to be paid by the respondent pursuant to paragraph 5 of these orders, the parties at a first attempt to resolve that dispute between themselves, but have liberty to apply in the event that they are unable to resolve the dispute.[4]
5. The UFU complaint was about both the delays and the accuracy of the travel allowance payments since 1 August 2024. In my view the audit proposal was directed to the issue of accuracy. I will deal with these two issues separately.

1. The evidence of Ms Osborne about the timing of the relevant payments was not disputed and I find that it provided a reliable timeframe for the history of the contraventions.
2. In August 2024, firefighters stopped receiving their travel allowance in their fortnightly pay.
3. On 14 November 2024, Lachlan Eichner, a member of the UFU, raised at the SAMFS State Council meeting that travel allowances had not been paid for some time. Ms Osborne and Chief Officer Jeff Swan committed to investigating the issue.
4. On 29 November 2024, Ms Rachel Eisen, Industrial Officer of the UFU, emailed Ms Osborne enquiring about why the payments were delayed and when they would be paid.
5. Ms Osborne replied by return email that day that "we are aware and it has been escalated as a high priority" and that she would provide an update "early the next week".
6. Ms Osborne gave evidence that:

By this stage, SAMFS had already been investigating the non-payment of the travel allowance, and attempting to fix the issue, for some time. After reviewing the relevant systems, we discovered that, in the absence of the key employees working on the Sapphire system:

1. The travel allowance payments were not automated, as previously thought, with these two employees responsible for manually entering the travel allowance data for the employees who were so entitled;
2. The two employees had not provided information about the travel allowances to any other SAMFS employee before they ceased work; and
3. There was no documented process for the payment of travel allowances from Sapphire to SAMFS payroll system."[5]

1. On 4 December 2024, Ms Max Adlam, Secretary of the UFU, wrote to Chief Officer Swan expressing concern that their attempts to resolve the issue had been unsuccessful and putting the SAMFS on notice that unless all outstanding arrears were paid by 6 December 2024, the UFU would consider an application to the South Australian Employment Tribunal ('SAET').[6]
2. With no arrears payments yet made, Chief Officer Swan's reply dated 5 December 2024 included the following:

As previously advised the MFS will pay these entitlements and acknowledges your concern. The MFS also has great concerns that payments have been delayed takes this matter seriously.

I note your request to have the matter resolved, and all outstanding arrears paid by close business Friday 6 December 2024. Unfortunately, your request does not provide sufficient time to address the issue, and it does not alight to payroll deadlines. The MFS cannot address this issue within two business days ... [and] ... [t]he MFS is focussed on addressing this matter as a matter of urgency.[7]

1. On 16 December, SAMFS emailed Shared Services (the agency which makes the salary payments) to process an Excel spreadsheet containing all travel allowances payable between 1 September 2024 and 16 December 2024 for metropolitan employees to be paid in the normal fortnightly pay run on 9 January 2025. This included more than 6000 entries.
2. On 7 January 2025, Ms Adlam again wrote to CO Swan raising further concerns about the ongoing failure to pay the travel allowances and asked if SAMFS would pay interest on the arrears.
3. There then followed a series of exchanges of correspondence between the SAMFS and the UFU. Each spoke in terms of wanting to cooperate to achieve a timely resolution of the problem, but with the UFU becoming increasingly frustrated at the slow rate of progress and lack of a clear resolution for the future.
4. On the date 1 March 2025, Chief Officer Swan sent an email to all SAMFS staff which included an apology for the inconvenience to any staff who had "not been paid appropriately", but did not include a clear commitment to a timeline for resolution.[8]
5. At the time of the hearings of the Application on 16 and 17 April 2025, the status of the travel allowance payments was as follows:
6. A first payment of arrears for metropolitan firefighters for the period 1 September to 15 December 2024 arrived in their fortnightly pay on 9 January 2025.
7. A second payment of arrears, again for metropolitan firefighters, for the period 15 December to 31 March 2025 had been processed and was expected in their fortnightly pay on 17 April 2025.[9]
8. Still outstanding were:
   • Payments for metropolitan firefighters for the period 1 to 14 April 2025, processed and sent to Shared Services 15 April 2025 and expected to be paid on 1 May 2025;[10]
   • Payments for travel to and from Port Pirie Fire Station;[11]
   • Payments for travel from 1 August 2024 to 10 August 2024[12]; and
   • Errors raised and investigated, awaiting substantiation and due for a response by 24 April 2025 to the firefighters who had raised them.[13]
9. Ms Osborne included in her affidavit a "hope" that payments for the Port Pirie travel for the period 1 September 2024 to 31 March 2025 would be processed by 17 April 2025 to be paid within 28 days thereafter and that her team had completed its analysis of the travel for Port Pirie for the period 1 April to 15 April on 16 April 2025.[14]
10. Ms Osborne was unable to confirm when the errors that have been investigated would be paid, nor when the SAMFS was likely to get to the bottom of why there had been no travel allowances paid for the period 1 to 14 August 2024. Nor was there any confirmation of when the complete backlog would be cleared and payments routinely made as they fell due.

1. Other than Ms Osborne acknowledging that there had been errors and a process in place for responding to such errors as were raised by individual firefighters, the extent of inaccuracies was not detailed.[15]
2. Attached to her affidavit was a copy by way of example of an email to a firefighter setting out to him the travel details for the arrears payment that had been processed for him. This included each date, location, whether equipment was carried and number of kilometres for each allowance entitlement.[16] Her evidence was that such details were emailed individually to all firefighters for whom an allowance entitlement had been processed, with an invitation to them to raise any queries by email.[17] She set out a ten step process for investigating and correcting any errors notified by employees.[18] She agreed that she had received emails from firefighters which sought to correct errors they had identified from this correspondence.
3. In the course of cross-examining Ms Osborne, the UFU tendered a number of email chains of correspondence between two of its members and Ms Osborne in which those firefighters detailed errors they believed had been made on their allowances.[19] These notified errors included errors both in favour and against the firefighter raising them.
4. While both of these firefighters claimed a substantial number of errors, Ms Osborne's evidence was limited to confirming that these and other claims of errors had been investigated and the correct entitlements were in the process of being substantiated.
5. She clarified that investigation involved considering the information provided by the firefighter about the alleged error, and said that this process had been completed for all errors notified so far. The process of substantiation was that of checking with the relevant fire station supervisor that the corrected travel details reflected travel actually undertaken. She expected to be able to reply with a confirmed outcome to those employees by 24 April 2025.
6. There was no evidence before me from either the UFU or the SAMFS as to how many error notifications had been received or investigated.
7. The process that the SAMFS was relying on to identify and rectify any processing errors was for the firefighter to check the information sent to them and to raise any errors they identified, which SAMFS would then investigate and correct once substantiated.

1. Ms Osborne gave evidence that when the senior management became aware of the problem, responsibility for sorting it out was allocated to her. She said the view of senior management was that the task most closely aligned with the functions of a section called Workforce Rostering, which handled the rostering of the firefighters. Since the travel allowance entitlements generally flowed from where and when firefighters are rostered this would seem logical. However, she said that section refused to take on the task unless they received more money, and there was no more money in the budget to give them, so the role was not allocated to them.
2. Ms Osborne was not drawn on the specifics of the extra money that team wanted. Counsel for the UFU submitted that I could infer it was either the task would have involved work at a higher classification than presently paid, or that it would require additional staff hours at ordinary or overtime pay, and senior management had decided not to make that allocation. Otherwise, there could be no basis for employees in that section to refuse a lawful and reasonable direction to undertake the work.
3. Counsel for the respondent submitted that I should not make any such inference in the absence of evidence as to what the issue was. I note that it was his client which was in a position to give such detailed evidence and declined to do so.
4. In cross-examination, in answer to a question about why the work had not continued to be done by other employees where it had previously been done, Ms Osborne described them as "operational staff". This means they were firefighters, not administrative staff. They had been replaced with other firefighters, but the task of entering the travel allowance data was not allocated to the replacement firefighters. It was moved to administrative staff under the supervision of Ms Osborne, with no commensurate transfer of the resources to perform the task.
5. Simply, in response to the problem, SAMFS transferred the function from one area to another, from the operational area to the administration area, without also transferring any resources needed for the task.
6. Her evidence was other staff were then called upon to assist with the processing the arrears, in addition to their usual roles and tasks. Her estimate of the staff time devoted to the processing the arrears was an average of 3 hours per week by herself and two other staff members. All up, this equates to around 12 hours per week of staff time in total per week.
7. In her affidavit, Ms Osborne had deposed as follows:

Unfortunately SAMFS does not have the capacity or capability to deploy additional resources focused on rectifying the travel allowance issue.[20]

1. When asked about that, she said that they could not allocate additional resources to the task as they were required to spend within budget to conform to the Treasurers Instructions. That much is accepted, but does not preclude re-allocating existing resources to meet its legal obligations to its employees and also comply with the Treasurer's Instructions, or attempting to obtain additional resources to manage the unexpected problem it faced.

1. While s 41(2) of the Public Finance and Audit Act 1987[21] makes it an offence to contravene or fail to comply with an instruction issued by the Treasurer with a maximum penalty of $1,000, s 224 of the FWA makes it an offence to contravene or fail to comply with a provision of an award or an agreement, with a maximum penalty of $2,500.
2. I do not have jurisdiction to impose a penalty on the respondent pursuant to s 224 of the FWA.[22] Unlike the Work Health and Safety Act 2012, which at s 10(2) provides that the Crown is liable for an offence against that Act,[23] the FWA contains no such provision. Consequently, as the law currently stands, no criminal prosecution for an offence under s 224 of the FWA can be brought against the Crown.[24]
3. The applicant included reference to s 224 in its initial application, and submitted that, although I do not have jurisdiction to impose a penalty under that provision, it was included as relevant to the issues of restraint and remedy in the current application.
4. I take this no further than to note that the requirement that SAMFS pay its employees their entitlements under the Award and Agreement is as much a legal obligation as complying with Treasurer's Instructions.
5. This problem did not arise because of a lack of resources. The job was being done without difficulty within resources until two staff left. That senior management did not know how that task was being performed or by whom speaks to a failure of management diligence, not resources. The firefighters who did the work were replaced with other firefighters who were not tasked with doing the work. There was no loss of paid staff hours, but a movement of the task from the area where the resources had been allocated to an area where they had not.
6. Given how long it took for senior management to start acting on the issue, then the inadequate measures it took to rectify it such that payments are still in arrears eight months later, it is little wonder that the UFU felt that it had to come to the SAET to try to get their members their lawful entitlements. Despite the language of the SAMFS correspondence to the UFU speaking in terms of concern and priority, the actual response indicated a lower priority than was required.
7. Once the SAMFS management became aware its firefighters were not being paid their entitlements, resuming compliance with that legal obligation should have had led to nothing short of full-time dedication of resources until it was resolved. Not only did this not happen, with no explanation for why it was moved from the operational area to the administration area without commensurate transfer of resources, but there was no evidence before me as to how it was going to be managed into the future.
8. In the absence of this dedicated commitment, it is not surprising that there have been some mistakes in the processing of the arrears. Although the two email examples provided by way of evidence show a significant number of errors for those two individuals, I was not provided with evidence about how widespread the accuracy problem has been.
9. The UFU submitted that its members had already been significantly disadvantaged by the non-payment of their entitlements over an eight-month period, and it was unreasonable to expect each of them to personally go through the information about their arrears payments to check if each payment was correct or not. It submitted that was the responsibility of the SAMFS to ensure the payments were accurate.
10. The respondent submitted that the process that was in place was reasonable, in that each firefighter was best placed to know what travel they had or had not undertaken and whether or not they had to carry equipment. In each email detailing the travel allowances to be paid was an invitation with contact details for any queries. There was a process in place for responding to those queries.
11. I agree it is the responsibility of the SAMFS to ensure that the travel allowance payments are accurate, but whereas I had reliable information about how extensive has been its non-compliance in relation to the timing of the payments has been, I did not have evidence about how extensive was its non-compliance in terms of accuracy.
12. SAMFS has a process in place for identifying and rectifying any mistakes in the allowance payments processing. The starting point for identifying any errors lies with the individual firefighter, who has then to raise it by email, and wait for a response. I note that the audit proposal from UFU would still involve individual firefighters checking the audit results sent to them and raising any disagreement at that point.
13. While an inaccurate payment that is less than entitlement is also a non-compliance by way of lateness until it is rectified, I do not have sufficient evidence about the accuracy error rate to persuade me that such a detailed direction to SAMFS management about how it must go about ensuring accuracy is warranted or would be any more effective than the process currently in place.
14. In relation to the difference between the parties as to the time by which the SAET should order the arrears be brought up to date, I was not inclined to grant the respondent the additional time it argued it should have based on its confidence that it could comply with an order for arrears within 35 days and an order for interest within 60 days. As was rightly submitted by counsel for the UFU, that submission was based on the SAMFS continuing to devote its existing level of resourcing to the task and that is not enough.
15. I raised with counsel for the respondent my understanding that the firefighters are paid on the same fortnightly pay cycle as other SA government employees via Shared Services. I was informed that is the case, but that there is capacity for payments to occur outside of that cycle on payment of an additional fee by the requesting agency and that SAMFS was willing to make payments outside the fortnightly pay cycle and absorb this additional cost.
16. Notwithstanding this capacity, I consider it appropriate to align the dates for compliance with the orders for the payment of arrears and interest to the existing fortnightly payment cycles. This is the least disruptive option for the employees receiving those payments.
17. SAMFS must review its attitude to the importance of meeting its legal obligations to its employees and dedicate its collective senior mind to the necessary arrangement of its resources to meet that obligation. It is of no less importance than meeting its obligations pursuant to the Treasurer's Instructions.
18. I consider an order for the rectification of the arrears non-compliance within 28 days is appropriate. This is two fortnightly pay cycles after payday 17 April 2025, the date of the order.
19. In relation to the payment of interest on those arrears, I accept that this is a new and discreet task to be arranged and undertaken and I allowed 56 days for this to be done. This is four fortnightly pay cycles from the date of the order.
20. While I have not been persuaded that I should make orders requiring the SAMFS to follow particular process in relation to ensuring accuracy, by way of the audit proposed by the UFU, I am concerned about the priority given by SAMFS senior management to compliance with its legal obligations to its employees by way of resources and arrangement of those resources.
21. This is the reason for my order that it provide confirmation to the UFU and to the Tribunal within 28 days of the level, location and arrangement of the resources necessary to ensure the timely and accurate compliance with its legal obligation to pay travel allowance to its firefighters.
22. I expect that the respondent will take whatever steps she considers necessary to ensure that the SAMFS complies with these orders.
23. The employer here is the Crown. That it has failed over such an extended period to comply with its own legal obligations is disturbing. The South Australian community is entitled to expect its government to adhere to the same standards of conduct that it requires of other employers.

[2] Exhibit R1, Affidavit Ms Osborne, 16 April 2025.

[3] Ibid excluding paragraph 50, to which objection was taken.

[4] Proposed orders, handed up in court.

[21] Public Finance and Audit Act 1987 (SA) s 41(2).

[23] Work Health and Safety Act 2012 (SA) s 10(2).

[24] Legislation Interpretation Act 2021 (SA) s 22.