Fire Brigade Employees' Union of New South Wales v Fire and Rescue NSW

[2019] NSWSC 654

Supreme Court

New South Wales

Medium Neutral Citation:	Fire Brigade Employees’ Union of New South Wales v Fire and Rescue NSW [2019] NSWSC 654
Hearing dates:	16 May 2018
Decision date:	01 July 2019
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	1. Appeal allowed. 2. Proceedings remitted to the Local Court. 3. Defendant to pay the plaintiff’s costs.
Catchwords:	INDUSTRIAL LAW – appeals – interpretation of award – whether firefighters entitled to overtime during multiday deployment
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), ss 56(1)(c), 59(2) Industrial Relations Act 1996 (NSW), ss 12, 197, 197(1)(c), 197(2), 357, 357(1), 358, 403(1)
Cases Cited:	Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435; [1946] HCA 25 Director of Public Employment (by her Agent the Commissioner of NSW Fire Brigades) v New South Wales Fire Brigades Employees’ Union (2008) 180 IR 170; [2008] NSWIRComm 158 Kucks v CSR Limited (1996) IR 182; [1996] IRCA 141 Warramunda Village Inc v Pryde (2002) 116 FCR 58; [2002] FCA 250
Category:	Principal judgment
Parties:	Fire Brigade Employees’ Union of New South Wales (plaintiff) Fire and Rescue NSW (defendant)
Representation:	Counsel: J Nolan (plaintiff) R Reitano (defendant)   Solicitors: Masselos & Co Lawyers (plaintiff) Fire & Rescue NSW (defendant)
File Number(s):	2018/17674
Publication restriction:	None

Judgment

1. HER HONOUR: In late March 2017, the Northern Rivers area of New South Wales was hit by heavy flooding. The emergency response included the establishment of a task force of firefighters from around New South Wales who were sent to Lismore to assist in the rescue work. Teams of firefighters were deployed for periods of four or five days, assisting as directed. Throughout their deployment, they stayed at a base camp and slept in tents.

2. The remuneration of firefighters in New South Wales is governed by the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017. The Award is binding on Fire and Rescue NSW as the employer to which it relates: s 12 of the Industrial Relations Act 1996 (NSW).

3. The Fire Brigade Employees’ Union of New South Wales alleges that Fire and Rescue NSW did not pay the overtime to which firefighters deployed to Lismore were entitled under the Award. The Union prosecuted civil penalty proceedings in the Local Court (sitting in its industrial jurisdiction) alleging breach of the Award. The relief sought included a civil penalty under s 357(1) of the Industrial Relations Act; an order that the penalty be paid to the prosecutor under s 403(1) of the Act and orders under s 358 of the Act requiring Fire and Rescue NSW to pay specified amounts to the five firefighters in question.

4. The summons was dismissed by the Court. The Union appeals from that decision.

Nature of the appeal

5. The appeal lies as of right by virtue of a combination of the provisions of the Industrial Relations Act and the Crimes (Appeal and Review) Act 2001 (NSW). Section 197(1)(c) of the Industrial Relations Act confers a right of appeal against the dismissal of proceedings for a civil penalty. Section 197(2) of that Act provides that the appeal is governed by the provisions of the Crimes (Appeal and Review) Act relating to appeals from the Local Court to the Supreme Court. Section 56(1)(c) of the Crimes (Appeal and Review) Act confers on the prosecutor an appeal as of right to the Supreme Court against the dismissal by the Local Court of any summary proceedings, but only on a ground that involves a question of law alone. The present appeal raises a question of law alone, being the question of the proper construction of the Award.

6. Section 59(2) of the Crimes (Appeal and Review) Act provides that the Supreme Court may determine such an appeal by setting aside the order and making such other order as it thinks just. In the event that the order dismissing the proceeding is set aside, the Union seeks an order that the matter be remitted to an Industrial Magistrate to be determined according to law.

7. For the following reasons, I have concluded that the Magistrate erred in his construction of the Award and that the appeal should be allowed and the matter remitted as sought.

Circumstances in which the civil penalty proceedings were brought

8. Following the deployments to Lismore, the Union was evidently contacted by a number of members concerning their overtime payments. The Union identified five firefighters whose complaints were generally representative of the members who responded to the incident. Of those, only two swore affidavits in the primary proceedings. The Magistrate held that the evidence was insufficient to establish any breach of the Award in respect of the other three and there is no appeal against that finding.

9. It is convenient to describe the dispute by reference to the affidavit sworn by Mr Robert Brusilowicz, a senior firefighter attached to St Mary’s Fire Station. On 3 April 2017, Mr Brusilowicz received a generic text message from Fire and Rescue NSW asking firefighters to advise whether they were available for “a multiday deployment” to the Richmond Tweed area as part of a rapid disaster assessment team. After responding in the affirmative, Mr Brusilowicz received a further text providing details for joining the team. The text included the following information:

“Multi-purpose helmet & sufficient duty wear clothing, for 3-4 days general purpose boots and general purpose gloves (and socks) will be required.

Also need stand down clothing for wet weather and recommend a towel and pillow.”

10. The Magistrate placed some reliance on the use of the term “stand down” in that text.

11. As instructed, Mr Brusilowicz reported to Alexandria Training College at 4pm on Wednesday, 5 April 2017 after collecting his gear from St Mary’s Fire Station. He was flown to Tweed Heads where he joined other firefighters for a briefing on the incident and the work required. The firefighters were then instructed to collect bedding and set up a space in one of the tents on site. The following morning they attended a further briefing after which they were instructed to perform rapid assessment duties. This involved working in teams of four responding to various locations in the Richmond-Tweed area and assessing the safety of residents, the extent of flood damage and the presence of any hazards. Mr Brusilowicz stated that in many instances they were the contact that residents received from emergency services after the floods had swept through four or five days earlier.

12. Mr Brusilowicz states that firefighters could not perform any duties during the evening as it was too dangerous to do so in the dark. He said they were told to remain at the base until morning. He returned to Sydney on Sunday, 9 April 2017 and was dismissed from duty at Alexandria Training College at 12pm.

13. The detail of the alleged breaches of the Award is addressed below. The principal contest concerns the payment of overtime. The Union contends that the firefighters were entitled to be paid overtime rates for the whole period of the deployment. Fire and Rescue NSW contends that the firefighters were entitled to overtime rates only for certain segments of travel and for all time actually “worked” by firefighters (subject to a qualification explained below).

The Firefighters Award

14. An important consideration in construing an industrial award is to note that it is binding on both employers and employees: s 12 of the Industrial Relations Act. The Award with which the present case is concerned addresses both rates of pay and conditions of employment for operational firefighters. The conditions of employment reflect the obvious fact that the safety of the community requires adequate numbers of firefighters to be available around the clock in all geographical areas to respond to all manner of unpredictable events. The rates of pay and entitlement to other benefits are framed accordingly, with conspicuous attention to detail.

15. The need to have adequate numbers of firefighters available at all times in all areas for all kinds of incidents is addressed by provision in the Award for both a 24-hour roster at every fire station, remunerated as “ordinary working hours” in accordance with clause 8, and a requirement to report for duty in certain other circumstances, remunerated as overtime in accordance with clause 9.

16. The Award does not include any separate provision addressing deployment to respond to an emergency within the State. Such events are accordingly governed by the general clauses outlined above. In determining how those clauses apply to a multi-day deployment away from home, it is relevant to note that the provisions concerning rosters are framed on the assumption that a firefighter will be attached to a particular fire station and will work a fixed number of weekly hours from that station, subject to the direction of the officer in charge. The exceptions to that pattern of work contemplated in clause 9 include being recalled to cover the absence of another firefighter and being recalled to an incident. Those are obvious logistic requirements in an organisation required to provide comprehensive geographic and temporal cover in a critical service. The Award includes provisions calculated to ensure that firefighters are properly fed while at work and, except in case of emergency, are able to have adequate breaks between shifts, also obvious logistic requirements in that line of work.

17. Interestingly, the case of response to an interstate or international emergency is addressed separately, in clause 12a. I will return to the significance of that clause.

18. The usual pattern of work is dictated by the fixed roster system set out in clause 8. The Award specifies three different roster systems and assumes each particular station or location will adopt one of those. Subclause 8.2.1 requires firefighters to “work the roster” in operation at the station or location to which they are permanently attached. That clause also contemplates that any change in the roster system will be a matter for consultation between the employer and the Union. Thus subclause 8.2.1 provides:

“Subject to subclause 8.9, Operational Firefighters shall work the roster in operation at the station/location to which they are permanently attached and this roster shall be known as their default roster. No default roster shall allow rostered shifts in excess of fourteen hours duration. Any proposed change at any location from one roster system to another, or to a new roster system, shall only occur following consultation between the Department and the Union.”

19. The nomination of this as the “default roster” suggests that it applies unless the firefighter is required to work different hours in any particular roster cycle.

20. Although subclause 8.9, which qualifies subclause 8.2.1, is presently irrelevant, it is instructive to have regard to the provisions of that clause. It provides that, irrespective of which roster is for the time being applicable, certain general conditions apply. The general conditions address the circumstance where a station receives an alarm requiring it to “stand by” or respond to an incident during a change of shift. Detailed provision is made for that circumstance including authorising the officer in charge to “hold both the oncoming and off-going platoons for duty at the incident”. The clear purpose of those provisions is to impose conditions of employment on firefighters that will ensure the response to an incident is not compromised by a change of shift.

21. To a similar end, an industrial protection for firefighters contained in clause 8.11, which provides as a default position that they “shall not work in excess of sixteen (16) hours straight”, is subject to the following qualifications: “except in the case of a call to an incident or other emergency circumstances, or by agreement pursuant to subclause 8.12”. The Award thus expressly contemplates that firefighters may be required to work in excess of 16 hours straight in the case of a call to an incident.

22. Clause 9, headed “Overtime”, similarly addresses both the entitlement to overtime pay and the obligation of firefighters to perform overtime. The term “overtime” is defined in clause 4 of the Award as follows:

“‘Overtime’ means for an operational firefighter all time worked with approval or direction in excess of the employee’s rostered shift.”

23. The basic provision in clause 9.1 is that overtime is to be paid at time and one half for the first two hours and at the rate of double time thereafter (subject to a minimum of 15 minutes). That is subject to clause 9.2, which provides:

“Any time worked by an employee in excess of 24 consecutive hours shall be paid for at the rate of double time, regardless of that employee’s roster.”

24. A question of law raised by the present appeal is the meaning of the phrase “time worked” in that clause. If it means what the Union says, that clause amply supports the Union’s contention that firefighters attending a multi-day deployment are entitled to continuous pay at overtime rates.

25. Clause 9.6 of the Award provides:

“9.6 Recall to Incident

9.6.1    An employee who is off duty and who is called upon, pursuant to subclause 9.6.2, to report for duty to attend an incident shall be entitled to a minimum payment equal to two hours at overtime rates.

9.6.2    Notwithstanding anything elsewhere contained in this clause, in the case of an incident, all employees off duty shall be liable to be called upon to report for duty and if called upon shall report immediately for duty.

9.6.3    An employee who is on annual leave or long service leave and who reports for duty to attend an incident shall, in addition to payment pursuant to subclause 9.1, be credited with consolidated leave equal to the amount of time so worked.

9.6.4    For meal allowance entitlements when the employee remains on duty for a period of four hours or more in connection with a recall pursuant to subclause 9.6.1, see Clause 10, Meals and Refreshments.”

26. Clause 9.8 makes provision for travel allowance in the circumstance where an employee is recalled pursuant to clause 9.6.2.

27. In the proceedings before the Magistrate, the parties also made submissions concerning clause 9.10, which provides:

“9.10    When overtime work is necessary it shall, except in the case of an emergency, be so arranged that employees have at least eight consecutive hours off duty between the work of successive shifts. Where an employee works so much overtime between the termination of the employee’s ordinary work on any day or shift, and the commencement of the employee's ordinary work on the next day or shift, that the employee has not had at least eight consecutive hours off duty between these times, the employee shall be released after completion of such overtime until the employee has had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

9.10.1    If on the direction of the employee’s authorised supervisor, such employee resumes or continues work without having had such eight consecutive hours off duty, the employee shall be paid at the rate of double time until the employee is released from duty for such period, and the employee shall be entitled to be absent until the employee has had eight consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

9.10.2    Provided that while recalls shall be paid for at overtime rates in accordance with this Award, where the actual total time worked on a recall or recalls is less than 3 hours it shall not count for the purpose of determining whether an employee has had an eight hour break pursuant to this subclause.”

28. The Magistrate noted that the requirements of that clause are subject to an exception (stated in the opening sentence) in the case of an emergency, which the Northern Rivers floods plainly were. I respectfully agree, for the same reasons, that subclause 9.10 was not engaged here. I would, however, place some weight on the provision of clause 9.10.1 requiring payment at double time “until the employee is released from duty” as providing some support for a construction that holds that firefighters are on duty until released.

29. The Union also relied in the primary proceedings on clause 10.3.1.1, which provides:

“10.3.1   an employee who works overtime which:

10.3.1.1   involves the attendance at an incident shall be provided with refreshments/meals in terms of subclauses 10.1.2 and 10.1.3 or payment in lieu thereof as prescribed in subclause 10.2;”

30. I understood it to be common ground that the application of that subclause turns on the resolution of the principal contest as to the proper construction of the overtime clause.

The Union’s contentions

31. The Union contended that, on a deployment such as the Lismore floods, the firefighters only ceased duty when the deployment was over, that is, when the firefighter returned to the station or location where duty commenced. The Union’s argument implicitly accepted that, in the case of a firefighter already rostered on duty who responded to the incident, the overtime would start at the conclusion of the rostered shift. In the case of a firefighter who was off-duty and was recalled to attend an incident, the overtime would commence when duty commenced. The burden of the submission was that the default roster was superseded by the deployment.

Fire and Rescue NSW’s contentions

32. Fire and Rescue NSW submitted to the Magistrate that the proper construction of the Award based on the natural and ordinary meaning of its express words read in context led (relevantly for present purposes) to the following conclusions:

“a.   A firefighter who is called upon to return to duty is paid overtime rates for those hours during which work is actually performed (clause 4 of the Award defining overtime to mean ‘all time worked with approval or direction in excess of the employee’s rostered shift’);

b.   A firefighter whose rostered hours coincide with an incident giving rise to a recall incident is paid ordinary single time rates of pay as it is not possible to be ‘recalled’ to duty when one is already on duty;

c.   A firefighter is not working when she or he is being provided with an 8 hours off duty break and that firefighter is not entitled to payment for overtime or ordinary time in respect of that period of time if for no other reason than that the firefighter is not working at those times when the firefighter is resting.”

33. Thus Fire and Rescue NSW argued that, under clause 9.6.1, overtime is paid for the hours “worked” in excess of a firefighter’s ordinary rostered shifts. Fire and Rescue NSW submitted that, understood in that way, the Award provides that, during a multi-day deployment, ordinary rates of pay apply during the firefighters’ rostered shifts and that overtime rates are due only for any additional hours actually worked.

34. The Magistrate noted that Mr Brusilowicz’s evidence was that the firefighters “could not perform any duties during the evening” as it was too dangerous. The only other firefighter who provided an affidavit said that there were periods during the deployment when he was resting overnight. However, he did not state the reason for that.

35. The Magistrate upheld Fire and Rescue NSW’s argument. His Honour did not consider that clause 9 contained any ambiguity in that respect and considered that the plain and ordinary meaning of the clause did not provide for the approach contended for by the Union.

Grounds of appeal

36. The Amended Summons specifies five substantive grounds of appeal. The particular errors alleged are that the Magistrate erred in:

1. rejecting the Union’s contention that the Award, on its true construction, requires that firefighters who are recalled to an incident are to be paid at overtime rates continuously from the time they commence duty to the time they return to their home base and cease duty (ground 3);

1. rejecting the Union’s contention that there is no provision in clause 9 which permits temporary suspension during a recall by ‘standing down’ firefighters on unpaid breaks (ground 4);

2. rejecting the Union’s contention that clause 9 does not permit the defendant to recall a firefighter at one location and to dismiss that firefighter from duty at another location (ground 5);

3. holding that the requirement for an 8 hour break on recall in clause 9.10 had any relevance to what a firefighter is to be paid when on a recall governed by clause 9 (ground 6);

4. confusing the notion of “off duty” (as it is used in the Award) with the notion of “rest period” or “break” for firefighters who remain in attendance at the workplace or incident (ground 7).

37. As the argument was developed, those grounds all turned on the same question of law which is whether, having been recalled to attend an incident, firefighters are entitled to be paid at overtime rates continuously from the time they commence duty to the time they return to their permanent station or muster point and are dismissed.

38. The Union contends that, during the multi-day deployment, the firefighters were entitled to be paid continuously “regardless of any (purported) break in work or any (so called) rest pause”. The effect of that construction would be that the firefighters should have been paid continuously from the time they left their base stations in Sydney or elsewhere until the time they returned to those stations.

Firefighters’ entitlements during multi-day deployment

39. As submitted on behalf of the Union, the task of construing an industrial award differs in some respects from the task of construing a statute. The Union relied on the following observation of the Full Bench of the Industrial Relations Commission of NSW in Director of Public Employment (by her Agent the Commissioner of NSW Fire Brigades) v New South Wales Fire Brigades Employees’ Union (2008) 180 IR 170; [2008] NSWIRComm 158 at [46]:

“Whilst awards are instruments to be construed according to the terms of the Interpretation Act [1987 (NSW)], consideration should be given to the differences between statutes and awards. Some of these differences were referred to by Street J in [George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498]:

‘But at the same time it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result, as this award in fact did, from an agreement between parties, couched in terms intelligible to themselves but often framed without the careful attention to form and draughtsmanship which one expects to find in an Act of Parliament.’”

40. I respectfully do not share the Magistrate’s conclusion that the construction contended for by Fire and Rescue NSW arises on the plain and ordinary meaning of clause 9. Central to the argument was the contention that there is a dichotomy in the Award between the definition of “overtime”, which carries with it the notion of “work” (in the expression “time worked”) and the employee’s rostered shift, which carries with it the notion of being “on duty” (an expression that appears several times in clause 8.9).

41. Fire and Rescue NSW’s fundamental contention on the strength of that distinction is that the expression “all time worked” in the definition of the term “overtime” in clause 4 means time actually spent working. There is, with respect, a measure of question-begging in that contention in that the argument assumes the correctness of the conclusion contended for as a premise. The very issue raised by the present appeal is what is meant by the expression “time worked”.

42. As fairly acknowledged on behalf of Fire and Rescue NSW during oral submissions at the hearing before me, there are arguments both ways on that issue. On the one hand the firefighters, having accepted a multi-day deployment for emergency rescue operations, could not be regarded as having been dismissed when they were allowed to return to their tents at the base camp. If they were on duty until dismissed, the whole of the time of the deployment could be regarded as “time worked” within the meaning of the definition of “overtime” in clause 4. The competing argument is that time spent resting or sleeping was not “time worked” within the meaning of that clause.

43. The Magistrate resolved that issue by reference to the notion that work was not performed during the night hours and therefore the firefighters were “stood down” for those periods. With respect, that conclusion involved an untested assumption as to what constitutes the work of a fireman.

44. The notion of a fireman being stood down without being dismissed from duty finds no support in the language of the Award. As already noted, the Magistrate placed some reliance on the fact that the text message calling firefighters to duty directed them to bring “stand down” clothes. Counsel for the Union stated at the hearing before me that “stand down” is a familiar term in industrial awards generally and presumably it follows that it is a familiar term in the industry. However, I do not think the use of the term in communications with firefighters assists one way or the other in construing the Award.

45. In my view, the construction contended for by the Union is to be preferred, for several reasons.

46. First, the alleged dichotomy between being “on duty” during a rostered shift and “time worked” on overtime is not sustained upon an analysis of the text of the Award. Both rostered shifts and overtime are variously characterised both as work and by reference to the notion of being on duty. So, subclause 8.2.1 requires firefighters to “work the roster”. They may elect to “work alternative rosters” provided such alternative rosters must not allow “more than five days’ work”.

47. Conversely, clause 9.6 speaks in terms of firefighters who are “off duty” being called upon to “report for duty” and makes provision for meal allowance entitlements while they remain “on duty” for four hours or more. Accordingly, in my view, both rostered shifts and overtime under the Award are treated as being periods of “work” and as periods when the firefighter is “on duty”. That accords with the ordinary meaning of the words; I would regard a person who is “on duty” to be at “work” and vice versa. Further, I would regard a person in an occupation such as that of a firefighter to be on duty until dismissed. That is consistent with the language of the Award.

48. Secondly, as noted on behalf of the Union, an aspect of the duties of a firefighter is to be at the ready, which necessarily involves periods of waiting. Their productivity is not measured by the number of fires they put out or the number of people they rescue from floods. Clause 8 contemplates that they are regarded to be working while on duty during their rostered shifts, many hours of which would be spent at the fire station without (relevant) incident. Counsel for the Union noted the remarks of Dixon J in Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 466; [1946] HCA 25 where his Honour noted that certain classes of work are recognised by the law to involve intermittent periods of activity and standing by and that “they also serve who only stand and wait”.

49. The Union also relied in this context on the decision of the Full Court of the Federal Court in Warramunda Village Inc v Pryde (2002) 116 FCR 58; [2002] FCA 250 at [36]-[37] where it was held that employees on a “sleepover shift” were engaged in “work” for the purposes of the relevant awards.

50. Thirdly, as submitted by the Union, the Award does not expressly provide for a firefighter to be required to “stand down” (that is, to have unpaid breaks) during a multi-day deployment away from his or her permanent station. The Magistrate reasoned that, for reasons of safety, work was not performed “and therefore the firefighters were stood down”. His Honour contrasted that with the position contemplated in clause 8.9 (which permits officers in charge to hold employees for duty to remain at an incident during a change of shift). His Honour took the view that, in that situation, work “needs to be continuously performed across the change of the shift”.

51. With respect, I do not accept that such a distinction can be drawn. Firefighters attending an incident during a change of shift could well be held for duty but directed to stand by for reasons of safety or while it was ascertained whether they were any longer required; it would not follow that they were “stood down” and were not working and therefore not entitled to overtime pay for that portion of the period in excess of their rostered shift that expired before they were dismissed.

52. Finally, where there is a constructional choice, it is necessary to have regard to the context of the relevant industry and industrial relations environment: Kucks v CSR Limited (1996) IR 182 at 184 (per Madgwick J); [1996] IRCA 141. I have already considered the nature of the work of firefighters (to the extent that it is a matter of common knowledge or revealed by the evidence here). It is important to note that a condition of the employment of firefighters under the Award is that they are liable to be called upon under clause 9.6.2 to report for duty, even while on annual leave or long service leave, to attend an incident. That is to be contrasted with the position under clause 12a concerning interstate and international deployments, which are voluntary. In the present case, it appears firefighters were invited to opt in but that does not inform the proper construction of the Award. If firefighters are liable to be called upon to report for duty for emergency incidents that might require them to be on duty for hours or days, the better construction in my view is that there is no authority to direct unpaid breaks while they remain on duty in response to such a recall.

Costs

53. The Union sought an order that the defendant pay the plaintiff’s costs of the proceedings below or, alternatively, an order that the costs of the first hearing be left to the Magistrate at the rehearing. The parties did not address that issue at the hearing before me. As it was common ground that, if the order dismissing the summons was set aside, the matter should be remitted to be determined according to law. Not knowing what the result of the remitted hearing will be, I am inclined to think that it is more appropriate to leave the costs of the first hearing to be determined by the Magistrate at that hearing.

Conclusion

54. For those reasons, I make the following orders:

1. Allow the appeal.

2. Set aside the orders of the Local Court of 2 March 2018.

3. Remit the proceedings to the Local Court to be determined according to law.

4. Order the defendant to pay the plaintiff’s costs of the appeal.

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Decision last updated: 05 July 2019