Industrial Relations Secretary v Fire Brigade Employees' Union of New South Wales

[2020] NSWCA 46

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Industrial Relations Secretary v Fire Brigade Employees’ Union of New South Wales [2020] NSWCA 46
Hearing dates:	7 February 2020
Decision date:	23 March 2020
Before:	Basten JA at [1]; Leeming JA at [42]; White JA at [49]
Decision:	(1)   In addition to the order granting the Secretary leave to appeal (made in the course of the hearing on 7 February 2020), direct that the draft notice of appeal contained in the white folder be filed in the Registry. (2)   Allow the appeal and set aside the orders made by McCallum J on 1 July 2019. (3)   In place of those orders, (a)   order that the amended summons filed in the Common Law Division on 3 May 2018 be dismissed; (b)   order that the plaintiff (Fire Brigade Employees’ Union) pay the defendant’s costs of the proceedings. (4)   Order that the respondent Fire Brigade Employees’ Union pay the costs of the appellant Secretary in this Court.
Catchwords:	EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Interpretation – whether award empowers employer to dismiss firefighters during an intrastate multiday deployment – whether firefighters entitled to overtime payment for entirety of intrastate multiday deployments
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 64, 65 Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 56 Fire and Rescue NSW Act 1989 (NSW), ss 69, 70 Government Sector Employment Act 2013 (NSW), s 50 Industrial Relations Act 1996 (NSW), ss 126, 197, 355B, 357 Local Court Act 2007 (NSW), s 70 Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10 Austin Australia Pty Ltd (in liq) v ANG Scaffolding and Rigging Service Pty Ltd [2007] NSWSC 1077; (2007) 25 ACLC 1363 Bathurst City Council (1980) 144 CLR 1 Dennis v Watt (1942) 43 SR (NSW) 32 East West Airlines Ltd v Turner (2010) 78 NSWLR 1; [2010] NSWCA 53 Fire Brigade Employees’ Union of New South Wales v Fire and Rescue NSW [2019] NSWSC 654 Fire Brigade Employees’ Union v Fire and Rescue NSW (22 December 2017, no neutral medium citation) Gregory v Philip Morris Ltd (1987) 19 IR 258 Hanley v Pease & Partners Ltd [1915] 1 KB 698 Kucks v CSR Ltd (1996) 66 IR 182 Manildra Flour Mills (Manufacturing) Pty Ltd v National Union of Workers [2012] FCA 1010 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Townsend v General Motors-Holden’s Ltd (1983) 4 IR 358 Tritton v Clarke [2018] NSWCCA 31
Texts Cited:	Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017 (NSW)
Category:	Principal judgment
Parties:	Industrial Relations Secretary (Appellant) Fire Brigade Employees’ Union of New South Wales (Respondent)
Representation:	Counsel: T Wong SC with PJ Strickland (Appellant) K Nomchong SC with J Nolan (Respondent)   Solicitors: Crown Solicitor’s Office (Appellant) Masselos & Co Lawyers (Respondent)
File Number(s):	2019/234375
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2019] NSWSC 654 Date of Decision: 1 July 2019 Before: McCallum J File Number(s): 2018/17674

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant challenged a decision of a judge of the Common Law division allowing an appeal from the Chief Industrial Magistrate concerning the construction of the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017 (“the Award”).

On and from 29 March 2017 heavy flooding in the Northern Rivers area of New South Wales led to the deployment of firefighters to assist in emergency rescue work. Subsequently, proceedings were brought by Fire Brigade Employees’ Union of NSW (“the Union”) alleging that Fire and Rescue NSW had contravened the Award by not paying five firefighters overtime rates for the whole period of their deployment period once they became first eligible for overtime.

The central issue in dispute before the Court of Appeal was whether the employer had the power to direct a firefighter to cease working overtime and dismiss them from work during an intrastate multiday deployment without returning them to their home station or muster point.

The Court of Appeal (Basten, Leeming and White JJA) unanimously dismissed the appeal holding:

The Court:

The definition of overtime under the Award states that overtime can only be worked at the “approval or direction” of the employer. There is no basis to imply a restriction on the employer’s power to direct a firefighter to cease working overtime: [27], [44], [45], [106], [107], [111].

There is no requirement in the Award to pay overtime rates for the entirety of a multiday instrastate deployment provided the firefighter is dismissed from duty in accordance with the Award: [21], [27], [46], [111]. The contrary approach would lead to absurd outcomes: [23], [47], [110]. It would be inconsistent with other provision of the award: [26], [47], [108], [109].

Basten JA:

When interpreting an industrial award one must have regard to the language of the agreement, industrial context and purpose. Adopting a constrained approach to referring to such matters is inconsistent with authority: [28], [29], [32].

Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241; [2005] HCA 10; Kucks v CSR Ltd (1996) 66 IR 182: applied.

Manildra Flour Mills (Manufacturing) Pty Ltd v National Union of Workers [2012] FCA 1010: not followed.

Basten JA and Leeming JA:

The appellant is entitled to costs of the appeal and before the primary judge as the submissions on appeal did not sufficiently depart from the case advanced below to warrant a departure from the general rule: [39], [48].

White JA:

The appellant is entitled to its costs on the appeal alone as the ground on which it was successful was not ventilated in the court below: [113].

Judgment

1. BASTEN JA: In March and April 2017 firefighters from other parts of New South Wales were deployed to Lismore to assist in rescue work resulting from heavy flooding. Teams were deployed for periods of four or five days. The firefighters were paid various allowances and overtime calculated by reference to the hours they were at work, but excluding night time when they were directed to rest. The respondent union brought proceedings in the Local Court against their employer, asserting that the firefighters were entitled to be paid at overtime rates for the full period of their deployment. The proceedings were heard by Chief Industrial Magistrate Shields on 7 November 2017; on 22 December 2017, he dismissed the proceedings.

2. An appeal was brought by way of summons dated 28 March 2018, filed in the Supreme Court. For reasons which are unclear, the matter was not heard until 16 May 2018. Judgment was delivered on 1 July 2019, when the primary judge, McCallum J, allowed the appeal and set aside the decision of the Industrial Magistrate. [1] The employer, the Industrial Relations Secretary, appealed pursuant to a grant of leave from the judgment in the Common Law Division.

   1. Fire Brigade Employees’ Union of New South Wales v Fire and Rescue NSW [2019] NSWSC 654 (“Fire Brigade Union”).

3. I agree with White JA that the appeal must be allowed and the judgment below set aside. My reasons for reaching that conclusion, together with other appropriate orders, follow.

Identity of applicant

4. For the reasons explained by White JA, and not disputed by the parties, the employer is properly identified as the Industrial Relations Secretary. The proceedings in this Court recognised that the Secretary was the proper party, although, unnecessarily and inappropriately, Fire and Rescue NSW was included as a second applicant. However, the Court granted the Secretary leave to appeal at the hearing and the draft notice of appeal, which should be filed named the Secretary as the sole appellant. There is now no purpose in ordering the renaming of the parties.

Nature of appeal from magistrate

5. The proceedings in the Local Court claimed both a civil penalty under s 357(1) of the Industrial Relations Act 1996 (NSW) for breach of the relevant industrial award, and payments of unpaid overtime entitlements to five named firefighters. Section 197 of the Industrial Relations Act confers a right of appeal to the Supreme Court from a dismissal of such claims by the Local Court, in accordance with relevant provisions of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”). Section 56(1)(c) of the Appeal and Review Act provides that a prosecutor may appeal to the Supreme Court against an order of the Local Court dismissing summary proceedings, “but only on a ground that involves a question of law alone”: s 56(1). Jurisdiction was conferred on the Supreme Court in relation to an appeal from an Industrial Magistrate by s 355B(j) of the Industrial Relations Act.

6. The appeal grounds set out in the summons filed in the Common Law Division did not in clear terms identify appropriate questions of law. The relevant provisions of the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017 (NSW) (the Award) have been set out by White JA and need not be repeated here. The grounds of appeal, to the extent that they expressly referred to the Award, identified the critical provision as cl 9, headed “Overtime”.

7. The primary judge was alert to the problem and, having set out the five “substantive” grounds continued:

“[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.”

The judge had earlier explained:

“[5]   … The present appeal raises a question of law alone, being the question of the proper construction of the Award.”

8. Those statements identified a question of law, but at a high level of generality. The grounds of appeal, by contrast, had the merit of identifying specific points of disagreement with the findings of the Chief Industrial Magistrate.

9. However, in order to identify any questions of law which were material to the disposition of the proceedings in the Local Court, it is necessary to have regard to the reasoning of the Chief Industrial Magistrate.

Reasoning of Chief Industrial Magistrate

10. The magistrate commenced his reasons by noting the allegation that the Secretary had contravened s 357 of the Industrial Relations Act by breaching specific provisions of the Award with respect to the payment of “overtime, and meals and travel allowances” to members who were “recalled to attend an incident of flooding”.

11. He then referred to the statement of agreed facts and affidavits by two of the firefighters who were deployed to Lismore from bases in Sydney. He accepted evidence that one, Mr Baker, had been “recalled” while off-duty, but observed that there was no evidence that the other firefighter who provided an affidavit, Mr Brusilowicz, was recalled to duty or simply came on duty when he reported to the College in Alexandria as requested. [2] He noted that there was no evidence with respect to three of the five individuals for whom payments were sought.

    2. Local Court judgment at [21].

12. He found, however, that the award did not “on its face” distinguish between recalls for significant events and other events of lesser duration. [3]

    3. Local Court judgment at [30].

13. The magistrate described the evidence as to what happened at Lismore as “scant”. [4] After noting the Union’s submission that each of the firefighters was “recalled to duty”, the magistrate continued:

“[23]   The only evidence of any kind concerning the events during the response to the Floods is contained in the affidavits of Messrs Baker and Brusilowicz, and is scant. In relation to the duty hours the relevant parts of the evidence are:

(1)   Mr Brusilowicz’s evidence, at [11]:

‘We could not perform any duties during the evening, as it was too dangerous to do so in the dark, and we were told to remain at the Base until morning.’

(2)   Mr Baker[‘s] evidence, at [8]-[10], to the effect that during the time he was deployed to Ballina in response to the Floods there were periods when he was resting overnight, although he does not state the reason.”

The magistrate also set out part of the text calling Mr Brusilowicz to report for duty to the effect that he would “need stand down clothing for wet weather and recommend a towel and pillow”. [5]

4.    Local Court judgment at [23], [38].

5. Local Court judgment at [24].

14. The magistrate continued:

“[25]   It is appropriate to first consider the FBEU’s submission that recalls are a separate and distinct species of event where the Firefighters are treated as on duty for the whole of the deployment starting at the time and place where they report or are recalled for duty and ending only at the time they are returned to that place, and paid at overtime rates for the whole of the period.

[26]   Counsel for the FBEU conceded during oral submissions that no part of cl 9, or any other of the award upon which the FBEU relies, expressly states those matters and, in that circumstance, the interpretation of the award for which the FBEU contends can only arise by ‘implication’ from the award read as a whole.”

15. The magistrate rejected this approach on the following basis:

“[27]   The FBEU’s approach, and the submission, is flawed because it is simply not consistent with the principles of interpretation set out above, which firstly requires [sic] the court to focus on the actual words in the award and their plain, ordinary English meaning, and if the words of the award have an unambiguous meaning, to ascribe that meaning. It is only if there is some ambiguity that the court moves to the next stage, where consideration is given to the expressed or supposed intention of the drafters of the award, and the context. Clause 9 does not exhibit any relevant ambiguity, and it contains a workable set of provisions that govern the entitlement to, and calculation of, overtime, the plain and ordinary meaning of which does not provide for the approach apparently taken and submitted by counsel for the FBEU. There is simply no occasion to go further and consider the expressed or supposed intention of the drafters, of which there is no evidence or material before the court, or the broader context.”

16. It will be necessary to refer to this passage below in considering possible errors of law.

17. The magistrate’s reasoning, in applying cl 9, was encapsulated in his rejection of the relevance of cl 8 dealing with “hours of work”, stating: [6]

“It has nothing to say concerning a circumstance akin to the present where during the response to an incident, and for reasons of safety, work was not performed during the night hours ... and therefore the firefighters were stood down.”

Similarly, in distinguishing the relevance of a standing order concerning sleeping on duty, the magistrate stated:[7]

“The Order also deals with a completely different, and distinguishable, set of circumstances, where Fire-fighters are on specific types of duty, and able to perform work but there is no work to be done; whereas, on the facts of this case, the Fire-fighters could not perform work because of considerations of safety, and were therefore stood down.”

6.    Local Court judgment at [28(1)]

7. Local Court judgment at [29].

18. The magistrate accepted the employer’s submission that cl 9 operated in accordance with the definition of overtime in cl 4 which read:

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

The magistrate then accepted the employer’s submission, holding that:[8]

“… overtime is only paid under cl 9.6.1 of the Award for hours worked in excess of the ordinary shifts that each firefighter was scheduled to work according to the roster which coincided with their work during the period that they were responding to the floods, and not during any period of stand down.”

8. Local Court judgment at [31].

Reasoning of primary judge

19. The main argument put by the Secretary in defence of the magistrate’s ruling was articulated by the primary judge, in rejecting it, in the following terms:

“[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’.”

20. The primary judge did not accept that there was a dichotomy between being at work and being on duty. Thus, she stated:

“[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’.”

Determination of appeal

21. This reasoning of the primary judge at [46] should be accepted: a person will be working whilst “on duty” and a person who is working will be on duty, even if the period extends beyond the rostered shift. There is, as the primary judge implied, no distinction for the purpose of calculating wages payable between the activity of directing a hose at a fire and waiting in the fire station to be called out. Nor do I understand the magistrate to have taken a different view. It is apparent from his reasons that a person who was stood down was no longer on duty. Thus, he did not find that firefighters who “could not perform work because of considerations of safety” were not entitled to overtime because they were not working; rather, it was because they were stood down that they were not entitled to overtime. [9]

    9. Local Court judgment at [29].

22. At the heart of the Union’s case was the proposition that the Secretary had no power to stand a firefighter down whilst on deployment away from his or her base and therefore that person was “on duty” throughout the period of absence from the base.

23. The magistrate’s construction of the award was correct, on the basis of three steps. First, the Award did not provide for overtime payments with respect to an operational firefighter otherwise than for time worked in excess of a rostered shift, “with approval or direction”, that is the approval or direction of the Secretary. There could be no suggestion that a firefighter became entitled to payment at overtime rates simply by choosing to stay on duty beyond his or her rostered shift, absent approval or direction of the Secretary. That conclusion is reinforced by cl 9 which provides for payment of overtime to an employee “who is required to work overtime” or is “called upon to work overtime.” [10]

    10.    Award, eg at cl 9.1, cl 9.6.1, cl 9.6.2.

24. Secondly, although the award makes express provision for interstate and international deployments (cl 12a) it makes no express provision for deployment at the direction of the employer within New South Wales beyond the station or location to which the employee is “permanently attached”, unless an inference to that effect can be derived from the obligation to obey reasonable directions, [11] as to which see [25] below. However, even total silence on the point would be inconclusive; the award does not seek to codify the powers of the employer to deploy staff; rather it is primarily concerned with identifying the financial consequences for the exercise of powers and imposing some procedural constraints. (The concept of permanent attachment is to be found in cl 8 dealing with “hours of work”, and in particular as a basis for identifying the roster by which the employee shall work: cl 8.2.1; consistently with this language, the award provides for transfer “to work at a new location”, and requires that specified periods of notice be given: cll 27 and 28.)

    11.    Award, cl 42.1.1.

21. Thirdly, although an employee may be permanently attached to a particular station or location, the Award does contemplate, and provides compensation for, travelling “outside … normal hours of duty” and accommodation when travelling overnight: cl 26.1, 26.1.4. The Award also speaks of a “temporary work location”. Thus, cl 26.2 provides for “waiting time” which is to be counted as travelling time in two circumstances:

“26.2.1   Where there is no overnight stay with accommodation at a centre away from the employee's residence or normal work location, one hour shall be deducted from:

26.2.1.1   the time between arrival at the centre and the commencement of duty; and

26.2.1.2   the time between ceasing duty and the time of departure from the centre.

26.2.2   Where overnight accommodation is provided, any time from arrival until departure shall not count as waiting time except as follows:

26.2.2.1   if duty is performed on the day of arrival, the time less one hour between arrival and the commencement of duty; and

26.2.2.2   if duty is performed on the day of departure, the time less one hour from the completion of duty to departure; or

26.2.2.3   if no duty is performed on day of departure the time after 0830 hours until departure.”

Further, there is provision with respect to accommodation:

“26.4   Accommodation Allowances

When an employee is required to perform official duty at a temporary work location which requires the employee to reside away from home and the employee is not provided with accommodation by the Government, the employee shall be eligible to be paid the following accommodation (sustenance) allowances subject to the conditions set out below:

…

26.5   Incidental Expenses Allowances – Government Provided Accommodation

When an employee is required to perform official duty at a temporary work location which requires that the employee reside away from home and is provided with accommodation by the Government, the employee shall be eligible to be reimbursed expenses properly and reasonably incurred during the time actually spent away from the employee's residence in order to perform that duty and in addition be paid an allowance at [a specified rate].”

26. These provisions are, as the Secretary submitted, inconsistent with the conclusion that any deployment away from the location to which the employee is “permanently attached” constitutes an unbroken period of “on duty” employment throughout the period of absence.

27. It follows that, whilst the firefighter is deployed away from his or her usual station, he or she must be paid in accordance with a usual roster, or an alternative agreed roster; overtime may be worked, at the direction or with the approval of the Secretary. It therefore follows that the Secretary has power to put an end to a particular period of duty (outside rostered hours) by standing the employee down. On the findings of fact made by the magistrate, that happened in the present case. There was no error of law in reaching such a conclusion.

Construction of awards – legal principles

28. Before leaving the substantive issues, it is desirable to return to the statement by the magistrate of principles governing interpretation of an industrial award (set out at [15] above). The statement was derived from an earlier passage in the reasons of the magistrate (at [8]) where he had extracted observations of Cowdroy J in Manildra Flour Mills (Manufacturing) Pty Ltd v National Union of Workers. [12] The principle identified by the magistrate found support in the words used by Cowdroy J in [50] and [51], but not [52]. However, Manildra Flour Mills at [51] included a quotation from Madgwick J in Kucks v CSR Ltd [13] which contained no constraint on reference to “expressed or supposed intention of the drafters”, nor to the need for “ambiguity” before considering context. Further, the constrained approach would be inconsistent with the modern view of construing legal instruments. Specifically, it would be inconsistent with the approach adopted by the High Court in Amcor Ltd v Construction, Forestry, Mining and Energy Union [14] to the construction of an industrial agreement. (Amcor was referred to in Manildra Flour Mills at [52].) Thus in Amcor, Gleeson CJ and McHugh J stated:

“[2]   The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation.”

12. [2012] FCA 1010 at [50]-[52].

13. (1996) 66 IR 182 at 184.

14. (2005) 222 CLR 241; [2005] HCA 10.

29. The joint reasons of Gummow, Hayne and Heydon JJ in Amcor commenced by considering the purpose of the agreement, set out the terms of the critical clause, then turned to other provisions in the agreement, and various aspects of the legislative background to the agreement. Returning to the construction of the critical clause, they noted that it “can be construed properly only if due account is taken of each of the matters we have mentioned: the other provisions found in cl 55 and elsewhere in the Agreement, and the matters of legislative background to which we have referred.”[15]

    15. Amcor at [50].

30. Kirby J, writing separately in Amcor, adopted the reasons of Madgwick J in Kucks set out in Manildra Flour Mills. [16] (Although Manildra Flour Mills at [52] referred to a passage in the judgment of Kirby J in Amcor at [95], that passage was not relevant.)

    16. Amcor at [96].

31. Callinan J in Amcor also referred to the passage from Madgwick J in Kucks. It is, accordingly, appropriate to repeat the passage from Kucks, which was in the following terms:

“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading.”

32. Although the statement of principle adopted by the magistrate in approaching the construction of the Award was flawed, nothing seems to have turned on that. It was not clear that he in fact disregarded the underlying purpose of the Award, or that he read provisions out of context. No issue was raised before the primary judge that such an error was made, let alone that it was material. She expressly adopted the approach of Madgwick J in Kucks, without reference to the misleading exegesis in Manildra Flour Mills. [17] Nevertheless, care should be taken in this jurisdiction in relation to some of the language in Manildra Flour Mills.

    17. Fire Brigade Union at [52].

Costs

33. Neither party suggested that costs in this Court should not follow the outcome of the appeal. It follows that the respondent must pay the appellant’s costs.

34. There may have been an argument that the respondent should not be ordered to pay the costs in the court below, because there had been a change in the basis upon which the Secretary argued the case. Both in its written submissions and in oral argument, the Union submitted that the Secretary “has now abandoned the primary argument it ran below, which was that a distinction arose between being ‘on duty’ and ‘working’ under the Award such that firefighters were only entitled to be paid when performing work tasks.” [18]

    18.    Respondent’s outline of written submissions, par 5; tcpt CA, 07/02/20, at p 30(8)-(14).

35. That proposition was expressly denied by the Secretary in the Applicant’s outline of submissions in reply. The Secretary stated that “[t]he applicant has maintained consistently that the firefighters were not ‘working’ when on an ‘off duty rest break’ at night during the course of their deployment at Lismore.” [19] That statement was supported by references to various passages in the oral submissions before the magistrate, and in the written submissions before the primary judge. The denial was maintained in oral submissions in this Court. [20]

    19.    Submissions in reply, par 4.

    20.    Tcpt, CA p 13(12)-(22).

36. On one view this dispute may be seen as a set of satellite submissions relevant only to costs. However, that would not be fair to either party. On the one hand, the Union did not raise the issue in relation to costs, and in fact did not address the question of costs before the primary judge at all. Rather its point was that the abandonment had muddied the grounds of appeal and cast doubt on the substance of the appeal. On the other side, the Secretary maintained the consistency of his approach.

37. Reference to a brief passage in the written submissions before the primary judge suggests that the issue was more nuanced and that the Secretary was seeking to make a point of some significance which could only be properly understood from the facts, although the facts may not have been established in these terms. The point nevertheless remains relevant as an illustration of how the Award was said to work. Thus the Secretary’s written submissions before the primary judge stated:

“6   … It is relevant that ‘work’ and not being ‘on duty’ attracts overtime rates of pay because the award generally distinguishes between those concepts. …

7   Operations at the incident in the Northern Rivers were generally confined to daylight hours. From approximately 7.00pm to 6.00am firefighters were given a break from work. During these periods the defendant did not pay overtime as work was not being performed; although single time rates were applied if the firefighter was rostered for a shift at their base station during that time ….”

38. In other words, a firefighter could have an “on duty rest break”, or an “off duty rest break”; in neither case was the person directed to work, but the former would be paid at ordinary time rates because it was a time when the person was on duty according to his or her roster.

39. In my view it was not shown that there was any material difference in the positions taken by the Secretary in submissions to (i) the magistrate, (ii) the primary judge and (iii) this Court. It follows that the respondent Union must pay the Secretary’s costs in the court below.

Orders

40. Although the summons seeking leave to appeal named both the Industrial Relations Secretary and Fire and Rescue NSW as applicants, the draft notice of appeal correctly identified the Industrial Relations Secretary as the sole appellant. Senior counsel for the Union accepted that that course was appropriate in the oral hearing. [21] A further direction is, however, required as to filing the notice of appeal.

    21.    Tcpt, 07/02/20, p 3(10)-(20).

41. I would propose the following orders:

1. In addition to the order granting the Secretary leave to appeal (made in the course of the hearing on 7 February 2020), direct that the draft notice of appeal contained in the white folder be filed in the Registry.

2. Allow the appeal and set aside the orders made by McCallum J on 1 July 2019.

3. In place of those orders,

1. order that the amended summons filed in the Common Law Division on 3 May 2018 be dismissed;

2. order that the plaintiff (Fire Brigade Employees’ Union) pay the defendant’s costs of the proceedings.

4. Order that the respondent Fire Brigade Employees’ Union pay the costs of the appellant Secretary in this Court.

42. LEEMING JA: I have had the advantage of reading the judgments of Basten JA and White JA in draft. I agree with their Honours that the appeal should be allowed. In light of their Honours’ judgments, I can expose my reasoning very briefly.

43. First, I agree with White JA that the Magistrate’s finding that the firefighters were “stood down” is ambiguous. Some aspects of the Magistrate’s reasons support the view that the words “stood down” were used in the technical sense of s 126 of the Industrial Relations Act 1996 (NSW), there being “no useful work for the employees” because of reasons “for which the employer or employers concerned are not responsible”. That would be consistent with the references in [28(1)] and [29], especially the latter, that “the Fire-fighters could not perform work because of considerations of safety, and were therefore stood down”. While there may have been no dispute at the level of primary fact of what occurred at the end of each day while the firefighters were on service at Lismore, its legal characterisation is not without complexity.

44. Secondly, I agree with Basten JA and White JA that the appeal should be allowed because the primary judge was wrong to conclude that where an employee who had been called upon pursuant to cl 9.6.2 to report for duty on an intra-state incident, that worker was to be paid at overtime rates until directed to cease work and had returned to his or her permanent station or muster-point. In this Court, the respondent maintained that there was no power to direct an employee to cease to be on duty unless and until the employee returned to his or her home station or muster-point. I do not accept that submission.

45. A preliminary difficulty is that the extension of the respondent’s proposition from returning to “home station” to including returning to a “muster-point” is awkward. The concept of a muster-point was reflected in the contemporaneous documents and no doubt the understanding of those involved, but absent from the terms of the award. The submission for which the respondent contended therefore carried with it an entitlement to overtime which fell outside the strict terms of the award. That is an unpromising starting point for a construction of the award which precluded power to bring overtime to an end.

46. But the principal difficulty confronting the respondent’s construction is the award definition of overtime, which is “all time worked with approval or direction in excess of the employee’s rostered shift”. I fail to see how the language of “approval or direction” can be construed to preclude the existence of a power to revoke an existing approval or give a further direction. Definitions may of course be displaced by the context, but even so I do not see any sound basis to disapply that definition in its application to employees who have been called upon to report for duty pursuant to cl 9.6.2.

47. As Basten JA has pointed out, the award provisions for interstate and international deployments, and deployments at a “temporary work station” tend to confirm the appellant’s construction. So does the consequence to which White JA refers, of firefighters being entitled to overtime for 24 hours a day until they return to their home station (or muster-point), and the inability to direct unpaid breaks.

48. The substantive orders proposed by Basten JA and White JA are identical, save in respect of the costs of the hearing in the Common Law Division. The starting point is that because the appeal from the Local Court should have been dismissed, those costs should follow the event: UCPR r 42.1. I am not persuaded that the submissions in this Court sufficiently departed from the case advanced below to warrant departing from the general rule. I agree with the orders proposed by Basten JA.

49. WHITE JA: On and from 29 March 2017 heavy flooding in the Northern Rivers area of New South Wales led to the deployment of firefighters to assist in emergency rescue work. One of the firefighters so deployed was a Senior Firefighter attached to the St Mary’s Fire Station, Mr Robert Brusilowicz. Another was a Senior Firefighter attached to the Engadine Fire Station, a Mr Glen Baker.

50. Mr Brusilowicz was asked by a text message on 3 April 2017 whether he was available to respond to the floods. He replied in the affirmative the following day and reported to a muster point in Alexandria at 4.00pm on Wednesday, 5 April 2017. He was flown to Tweed Heads and joined other firefighters at the Base of Operations at Wollongbar TAFE for a briefing on the work required. He completed the deployment when he returned to Sydney on Sunday, 9 April. He was dismissed from duty at midday on 9 April.

51. Mr Baker was contacted on Sunday, 2 April 2017 after he had finished his normal rostered shift. He reported to the muster point at Alexandria at 11.30am and signed on at 12.00pm. He returned from the deployment at midday on Thursday, 6 April.

52. Both men were permanent firefighters and the terms of their employment were governed by the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2017.

53. The issue before the Local Court (Shields LCM sitting as Chief Industrial Magistrate) and on appeal to the primary judge (McCallum J) was whether under the Award, the firefighters were entitled to be paid at overtime rates for the whole period of their deployment. The position taken by Fire and Rescue NSW was that firefighters were entitled to be paid “recall kilometres” from their base station to the marshalling areas and return for the transportation of their gear, overtime rates of pay for travel to and from such marshalling areas and the incident site, overtime rates of pay for time worked by firefighters at the incident, being, with one exception, daylight hours where “actual work” was carried out, a refreshment allowance after the first two hours worked and a meal provided or allowance paid every four hours during such period of “actual work”, and an accommodation allowance for each nightly eight-hour break.

54. On 27 June 2017 the Fire Brigade Employees’ Union of NSW (“the Union”) filed a summons in the Local Court. It named Fire and Rescue NSW as defendant. It alleged that Fire and Rescue NSW had contravened cll 6.9.2, 9.6, 9.10 and 10.3.1.1 of the Award and thereby contravened s 357 of the Industrial Relations Act 1996 (NSW). The summons was called “Summons – Prosecution or Recovery of Civil Penalty”. The relief sought did not include a civil penalty. But orders (called further orders) were sought for payment of moneys claimed to be owed to five named employees, including Messrs Brucilowicz and Baker. The Union contends that the firefighters were entitled to be paid overtime for the whole period of their deployment: from the time they reported to the muster point to the time they returned to the muster point.

55. The learned Magistrate dismissed the summons (Fire Brigade Employees’ Union v Fire and Rescue NSW (22 December 2017, no medium neutral citation).

56. An appeal from his Honour’s orders lay to the Supreme Court (Industrial Relations Act, s 197). It was common ground that the appeal lay to the Supreme Court “... only on a ground that involves a question of law alone.” (Industrial Relations Act, s 197(2); Local Court Act 2007 (NSW), s 70(4); Crimes (Appeal and Review) Act 2001 (NSW), s 52(1)).

57. The primary judge allowed the appeal (Fire Brigade Employees’ Union of New South Wales v Fire and Rescue NSW [2019] NSWSC 654). The appellant sought leave to appeal from that decision.

58. An initial procedural difficulty arose on appeal. The defendant named in the Local Court and the Supreme Court was “Fire and Rescue NSW”. There is no such legal entity. A member of a fire brigade is taken to be employed by the Government of New South Wales in the service of the Crown (Fire and Rescue Act 1989 (NSW), s 69(2)). Section 70(1) provides:

“70   Industrial Relations Secretary is to be employer for certain purposes

(1)     The Industrial Relations Secretary is, for the purposes of any proceedings relating to members of permanent or retained fire brigades held before a competent tribunal having jurisdiction to deal with industrial matters, to be taken to be the employer of those persons.”

59. It is common ground that the Industrial Relations Secretary is the proper appellant and was the proper party below.

59. The Industrial Relations Secretary ought to have been named as defendant in the Local Court and the Supreme Court. The error was a misnomer of the defendant, not the misjoinder of a party. The record below should be amended to correct the defendant’s name. The amendment would take effect from the commencement of the proceeding in the Local Court (Civil Procedure Act 2005 (NSW), ss 64(4), 65(3); East West Airlines Ltd v Turner (2010) 78 NSWLR 1; [2010] NSWCA 53; Austin Australia Pty Ltd (in liq) v ANG Scaffolding and Rigging Service Pty Ltd [2007] NSWSC 1077; (2007) 25 ACLC 1363 at [21]-[33]).

60. Although the Industrial Relations Secretary is the proper appellant and the Crown is the employer bound by the Award it is convenient to use the phrase “Fire and Rescue NSW” to denote the employer.

The Award

62. Operational firefighters are required to work a roster in operation at their station or location. The Award makes detailed provision for such rosters and for a variety of allowances.

63. Clause 6.9.2 requires overtime to be paid within two pay periods of the date upon which overtime is worked.

64. Section 9 of the Award is headed “Overtime” and provides for overtime to be paid at the rate of time and one-half for the first two hours of overtime and at the rate of double time thereafter. Section 9 relevantly provides:

“9.         Overtime

9.1    Subject to subclause 9.2, overtime shall be paid for at the rate of time and one-half for the first two hours and at the rate of double time thereafter, provided that an employee who is required to work overtime shall be entitled to payment for at least 15 minutes of overtime on each occasion that the employee is called upon to work overtime. To avoid doubt, where work commences prior to the start of an employee’s rostered shift and continues beyond the conclusion of that shift then the relevant rate of pay shall be determined by having regard to the entire period of overtime worked, so that any and all overtime worked in excess of two hours is paid at the rate of double time.

9.2    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.

9.3    For meal allowance entitlements where an employee works overtime, see Clause 10, Meals and Refreshments.

9.4    When it is reasonably necessary for an employee who has returned to the station either before or after the ceasing hour of the shift to clean up before leaving the station, and thereby justifiably leaves the station after the ceasing hour, the time so reasonably and necessarily occupied beyond the ceasing hour shall be paid for as overtime. 

...

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.

9.7    Recall to Maintain Required Staffing Levels

9.7.1    An employee off duty who is required to report for duty for the purpose of maintaining required staffing levels shall, on so reporting, be entitled to a minimum payment equal to four hours at overtime rates.

9.8    Where an employee recalled pursuant to either subclauses 9.6.2 or 9.7.1:

9.8.1    Is required to transport the employee's gear from the station/location at which the gear is located to another station/location in order to perform the duties of the recall, such employee shall be paid the Kilometre Allowance set at Item 2 of Table 3 of Part C, for the distance travelled on the forward journey between the two locations, provided that employees who are placed upon a transfer register pursuant to clause 28, Transfers Outside of the GSA, and are claiming residential priority shall instead be paid the Kilometre Allowance for the distance between the permanently staffed station closest to their primary residence and the station/location where the duties of the recall are to be performed.

9.8.2    Is required to transport the employee's gear back to the station/location at which the gear was located because the Department is unable to do so, the employee shall also be entitled to be paid kilometres equal to the forward journey at subclause 9.8.1.

For the purpose of this subclause ‘distance travelled’ means the agreed distance or, if the distance is not covered by a Matrix, the actual kilometres between the two stations/locations.

9.8.3    Incurs a toll as a consequence of using a bridge, tunnel or motorway when travelling to perform the recall, such employee shall be reimbursed for the cost of the toll.

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.”

65. “Overtime” is defined as follows:

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

66. “Incident” is defined as follows:

“‘Incident’ means a fire call or any other emergency incident attended by Fire and Rescue NSW.”

67. Section 8 of the Award deals with hours of work and rosters. Clauses 8.1 and 8.2 provide for firefighters to work an average 40-hour week (cl 8.1). They are to work a roster in operation at the station or location to which they are permanently attached (cl 8.2.1)

68. Clause 8 makes detailed provision for different forms of roster applicable to fire stations, namely, a “Standard 10/14 Roster System”, a “Back to Back Roster System”, and an “Overlap Roster System.”

69. Clause 8.9 relevantly provides:

“8.9    Irrespective of which roster is for the time being applicable, the following general conditions shall apply:

8.9.1    In the event of an alarm, requiring any station to stand by or respond to an incident, being received at the station during roll call, the oncoming platoon shall, if required, respond to the incident. The off-going platoon shall remain on duty, if required, or until otherwise directed. ...

8.9.2    The oncoming shift available in the station may attend roll call without any overtime penalty being incurred, but on completion of the roll call and the Officer-in-Charge being satisfied that there are adequate staff for the shift, the off-going shift shall then be dismissed.

...    

8.9.4    If, when the oncoming platoon reports at a station at the time prescribed for the change of shift, the other platoon is proceeding to or attending an incident or alarm, the oncoming platoon, if so ordered, shall after roll call, proceed to the incident and the Officer or senior members of the platoon shall report, without delay, the arrival of the platoon to the Officer-in-Charge of the incident. The off-going platoon shall remain on duty at the incident until relieved.

8.9.5    The Officer-in-Charge of the incident may, if in that Officer's judgment it is expedient, hold both the oncoming and off-going platoons for duty at the incident. If the off-going platoon is not held at the incident or is not detained at the incident for duty elsewhere, it shall report back to the station and shall remain available until the other platoon returns or until otherwise directed, when it shall be dismissed.

...”

70. Clause 8.11 provides:

“8.11 Employees shall not work in excess of sixteen (16) hours straight except in the case of a call to an incident or other emergency circumstances, or by agreement pursuant to subclause 8.12.”

71. Clause 8.12 provides:

“8.12   Employees may elect, but not be directed, to work in excess of sixteen (16) hours straight by way of overtime, an alternative roster or a change of shift agreement provided:

...

8.12.2   that such employees have at least eight consecutive hours off duty between the cessation and recommencement of duty; and

8.12.3   that no employee shall be permitted to work in excess of twenty four (24) hours straight except in the case of a call to an incident or other emergency circumstances, or a staff shortage pursuant to subclause 8.9.6.”

72. In the present case all five firefighters the subject of the application had been working 24-hour rosters where they were rostered to work one 24-hour shift from 0800 to 0800, followed by a 24-hour period off, then a second rostered 24-hour shift, followed by five 24-hour periods off. This was no doubt possible because the Commissioner has issued a Standing Order entitled “Sleeping on ‘N’ duty”. It states that at the discretion of the Commissioner all permanent officers and firefighters may recline and sleep between 2200 hours and 0600 hours unless on rostered watchmen ‘N’ duty, subject to specified conditions. The Standing Order states that “sleeping must be regarded as a concession which may be revoked by the Commissioner at any time. Should there be abuse, conditions will revert to those under the Award.”

73. Clause 10 is headed “Meals and Refreshments”. It relevantly provides:

“10.1    Attendance at an Incident

10.1.1   For the purposes of this clause, an ‘incident’ also includes hazard reduction or any similar situation where facilities comparable to those provided at fire stations are not available to partake of a meal.

10.1.2    Where an employee attends an incident which extends for two hours or more; Refreshments shall be provided no later than two hours after the start of the incident.

10.1.3    Where such an incident extends for four hours or more, the employee shall be provided with a Substantial Meal. After every subsequent four hours of attendance at such an incident, a further Substantial Meal shall be provided.

10.2    Payment in Lieu of the Provision of Refreshments/Meals

10.2.1    Where Refreshments are not provided in terms of subclause 10.1.2, the Refreshment Allowance set at Item 15 of Table 3 of Part C, shall be paid.

10.2.2    Where an Emergency Meal is supplied in lieu of a Substantial Meal, the Refreshment Allowance set at Item 15 of Table 3 of Part C, shall be paid.

10.2.3    Where a Substantial Meal or Emergency Meal is not provided in terms of subclause 10.1.3, the Meal Allowance set at Item 14 of Table 3 of Part C, shall be paid.

10.3    During Overtime

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 the payment in lieu thereof as prescribed in subclause 10.2;

10.3.1.2    does not involve attendance at an incident and is not a recall for the purpose of maintaining required staffing levels, shall, if such overtime extends for more than two hours, be paid the Meal Allowance set out at Item 14 of Table 3 of Part C. After every subsequent four hours of such overtime worked, the Refreshment Allowance set out at Item 15 of Table 3 of Part C, shall be paid.”

74. The definition of “overtime” refers to work in excess of (not in the absence of) an employee’s rostered shift. Clause 8.9 deals with an employee’s right to overtime if there is an alarm at the station requiring a response. Clauses 9.1 and 9.2 deal with overtime in connection with the employee’s roster. The conditions of the award hitherto considered do not specifically address the deployment of a firefighter away from the station for an extended period where there is no approved roster. The closest relevant provision is cl 9.6. Although there was no evidence that any of the employees was “called upon to report for duty”, as distinct from being asked whether they would volunteer for duty, the parties did not dispute the Magistrate’s finding (referred to below at [77]) that Mr Baker was recalled within the meaning of cl 9.6.

75. Express provision was made for employees who were invited and elected to respond to an extended interstate or international emergency as part of a deployment (cl 12(a)). Relevanty, under cl 12a firefighters are not entitled to be paid overtime at double rates for the whole period of their deployment inter-state or overseas.

Leave to appeal

76. The Industrial Relations Secretary needed leave to appeal. In support of that application he relied upon an affidavit of a Ms Karen Folden, the executive director of finance at Fire and Rescue NSW. She deposed to the financial impact of the primary judge’s decision. The Union submitted that the affidavit should have been rejected as it was not before the primary judge, and was irrelevant to the issues raised by the proposed appeal. That was true, but irrelevant. The affidavit was not relied upon for that purpose. It was relied upon to show that the appeal raised a question of general public importance. The affidavit was admissible for that purpose. Leave to appeal was granted.

Findings of the Local Court

77. The Magistrate made a finding (at [18]) that Mr Baker was off-duty and at home when he was “recalled to respond to the Floods”. He found (at [21]) that:

“For the purposes of an entitlement to Overtime under clause 9 of the Award, Mr Baker was recalled within the meaning of clause 9.6, and it is not possible to determine, on the evidence, whether Mr Brusilowicz was in a similar position and therefore recalled to duty, or simply came on-duty when he reported on 5 April 2017.”

78. The Magistrate quoted Mr Brusilowicz’s evidence that:

“We could not perform any duties during the evening, as it was too dangerous to do so in the dark, and we were told to remain at the Base until morning.” (at [23(1)])

He observed that Mr Baker gave evidence to the effect that during the time he was deployed to Ballina in response to the floods there were periods when he was resting overnight, although he did not state the reason (at [23]).

79. The Magistrate referred to the evidence of Mr Brusilowicz that set out a text that provided him with details as to his reporting for duty. This was after Mr Brusilowicz had volunteered for duty. The text message said that he would:

“... also need stand down clothing for wet weather and recommended towel and pillow.”

80. The Magistrate emphasised the words “stand down”. His Honour apparently considered that that text message indicated that there would be periods in which the firefighters would be stood down during their deployment.

81. The Magistrate found that clauses 8.9.4 and 8.9.5 of the Award, had

“... nothing to say concerning a circumstance akin to the present case where during the response to an incident, and for reasons of safety, work was not performed during the night hours work and therefore the Fire-fighters were stood down.” (at [28(1)])

82. His Honour repeated (at [29]) that:

“... on the facts of this case, the Fire-fighters could not perform work because of considerations of safety, and were therefore stood down.”

83. The finding that firefighters were “stood down” was ambiguous. As explained below that ambiguity is significant given that the appeal to the Supreme Court lay on a question of law alone.

84. The approach taken by counsel for the Union was summarised by the Magistrate as follows:

“10   In relation to the payment of hours for overtime the FBEU’s case may be summarised in the following way:

(1)    The Award, on its true construction, requires that Fire-fighters be paid continuously from the time they commence duty to the time that they cease duty at the specified overtime rates irrespective of whether they were on duty and responded to the incident, or were off-duty and recalled to attend the incident;

(2)   There is no provision in clause 9 of the Award that:

(a)   Permits the temporary suspension of a recall by standing down Fire-fighters on unpaid breaks;

(b)   Permits FRNSW to recall a Fire-fighter at one location and to dismiss that Fire-fighter from duty at another location;

(3)   FRNSW has contravened clause 9.10 and 9.10.1 by not paying continuous overtime to Fire-fighters who during the response to the Floods did not have eight (8) continuous hours off-duty before the commencement of their rostered shift;

11   In essence the FBEU’s case in relation to overtime is that, for the purposes of clause 9 of the Award, recalls are a separate and distinct species of event where the Fire-fighters are treated as on duty for the whole of the deployment starting at the time and place where they report or are recalled for duty and ending only at the time they are returned to that place, and paid at overtime rates for the whole of the period.

12   In relation to allowances for meals and travel the [FBEU] contends that the Award requires that FRNSW provide Fire-fighters attending an incident and working overtime with refreshments after two (2) hours and a substantial meal every four (4) hours thereafter, or payment in lieu under clause 10.2. This part of the FBEU’s case was argued on the basis that the claimed amounts were solely [referable] to the periods during the response to the Floods when the Fire-fighters were temporarily stood down on unpaid breaks because work was not able to be safely performed during the hours of darkness, and would therefore rise or fall on the resolution of the issue concerning the entitlement to payment of overtime for the latter periods.” (AB 185-186)

85. The Magistrate rejected these contentions. He reasoned as follows:

“25   It is appropriate to first consider the FBEU’s submission that recalls are a separate and distinct species of event where the Fire-fighters are treated as on duty for the whole of the deployment starting at the time and place where they report or are recalled for duty and ending only at the time they are returned to that place, and paid at overtime rates for the whole of the period.

26   Counsel for the FBEU conceded during oral submissions that no part of clause 9, or any other part of the Award upon which the FBEU relies, expressly states those matters and, in that circumstance, the interpretation of the Award for which the FBEU contends can only arise by ‘implication’ from the Award read as a whole.

27   The FBEU’s approach, and the submission, is flawed because it is simply not consistent with the principles of interpretation set out above, which firstly requires the Court to focus on the actual words used in the Award and their plain, ordinary English meaning, and if the words of the Award have an unambiguous meaning, to ascribe that meaning. It is only if there is some ambiguity that the Court moves to the next stage, where consideration is given to the expressed or supposed intention of the drafters of the Award, and the context. Clause 9 does not exhibit any relevant ambiguity, and it contains a workable set of provisions that govern the entitlement to, and calculation of, overtime, the plain and ordinary meaning of which does not provide for the approach apparently taken and submitted by counsel for the FBEU. There is simply no occasion to go further and consider the expressed or supposed intention of the drafters, of which there is no evidence or material before the Court, or the broader context.”

86. The Magistrate thus rejected the Union’s submission that firefighters are treated as being on duty for the whole of the deployment. The Magistrate did not explain why the “plain and ordinary meaning” of cl 9 did not support the approach contended for by the Union. It may be that his Honour considered that because the definition of “overtime” refers to “all time worked with approval or direction in excess of the employee’s rostered shift”, time when the firefighter was not required to perform work, was not time worked by him within the meaning of the definition of “overtime”. That is how the primary judge understood the Magistrate’s reasons.

Reasons of the primary judge

87. Before the primary judge the Union submitted that the firefighters remained on duty until their deployment was over on their return to the station or location where their duty commenced. Fire and Rescue NSW did not accept this. It noted in its written submissions that the Union’s contention was based on an implication and submitted that the basis for the implication had never been made clear.The Union contended that firefighters were entitled to overtime payments for the whole of that period, unless the firefighter was already on a rostered shift when deployed (at [31]). Fire and Rescue NSW submitted that overtime was only payable for the additional hours “actually worked” (at [33]).

88. This was its principal position before the primary judge. In its written submissions Fire and Rescue NSW relied on the definition of “overtime” and its reference to hours worked. It submitted that:

“It is relevant that ‘work’ and not being ‘on duty’ attracts overtime rates of pay because the Award generally distinguishes between those concepts.

...

[T]he Award provisions for overtime apply to ‘work’ and not to ‘on duty’.”

89. The primary judge summarised the Union’s contentions (at [31]) as follows:

“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 the 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.”

90. Her Honour summarised Fire and Rescue NSW’s submissions (at [33]) as follows:

“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.”

91. The primary judge then reasoned, on the apparent assumption that the firefighters remained on duty for the whole period of their deployment, that they worked for that entire period within the meaning of “hours worked” in the definition of “overtime”.

92. The primary judge formulated the question of law (at [37]) as being:

“... 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.”

93. The primary judge reasoned as follows:

“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. ...

...

47   ... 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 the 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’.

...

51   ... 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   ... 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.”

Consideration

94. On appeal, Fire and Rescue NSW modified its position. It accepted that for so long as a firefighter remained on duty during the deployment he was entitled to be paid overtime even if he were not actually working. It submitted that the Magistrate’s finding that the firefighters were “stood down” at night meant that they had been dismissed from duty during the period they were stood down. That submission had not been made to the primary judge.

95. The Union submitted that when the Magistrate found that the firefighters had been “stood down” his Honour was using that expression in a sense that had a specific meaning in industrial law, namely, that although the workers were on duty they were stood down without pay.

96. Had that been what the Magistrate intended, then he would have had to address the fact that the employees remained on duty and would have needed to address the consequences. The Magistrate would have had to address the fact that the award contains no stand down clause permitting a firefighter to be stood down if he or she is on duty and would need to have addressed s 126 of the Industrial Relations Act that provides that it is the Commission (not the employer) who may order the stand down of employees if there is no useful work for the employees to perform because of any of the matters specified in s 126(1)). The fact that the learned Magistrate did not address those matters makes it clear that his Honour was not referring to the firefighters having been “stood down” in what was said to be the “technical sense” applicable to the industrial jurisdiction. His Honour’s reasons would have been inexplicable if that had been the intended meaning of his reference to the firefighters’ being “stood down”. His Honour could not then have dealt with the Union’s submission in the way that he did. His Honour had rejected the Union’s submissions that the firefighters remained on duty for the whole period of their employment (see [86] above).

97. The primary judge interpreted the Magistrate’s finding that firefighters were “stood down” as saying no more than that work was not performed during the night hours (Judgment [43] and [51]).

98. The primary judge found or assumed that the firefighters remained on duty (Judgment [42], [44], [48], [51]).

99. As the appeal to the primary judge lay only on a point of law, no evidence could have been adduced by either party as to whether the firefighters had been dismissed from duty. Fire and Rescue NSW did not concede before the primary judge that they had not been dismissed from duty. The point raised on appeal is available to Fire and Rescue NSW even though not raised below (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35).

100. Counsel for the Union argued that as there was no express provision in the Award to enforce a ‘stand down’ or an ‘unpaid break’ during an intrastate multiday deployment the firefighters remained on duty for the duration of the deployment. The Union relied upon Hanley v Pease & Partners Ltd [1915] 1 KB 698 at 705; Townsend v General Motors-Holden’s Ltd (1983) 4 IR 358 at 365; Gregory v Philip Morris Ltd (1987) 19 IR 258 at 279) to support that proposition. The Union also argued that there was no basis for such a power to be implied because the Award is highly specific in its terms. Further, as a similar power was included in cl 12a.4 relating solely to interstate and overseas deployments, it weighed against such a term being implied into the general provisions of the Award.

101. None of the authorities relied on by the Union held or implied that an employer cannot terminate the period of an employee’s overtime.

102. The question of law that undoubtedly arose before the primary judge and on appeal is whether it is open to the employer under the Award to dismiss a firefighter from duty for a limited time prior to the termination of the employee’s deployment so that overtime is not payable for the period during which the employee has been dismissed from duty.

103. A second question of law would also arise if on the facts found by the Magistrate, or on any additional facts that were agreed, or were otherwise incontestable, on the proper construction of the award, the firefighters were entitled to be paid overtime as claimed (Hope v Bathurst City Council (1980) 144 CLR 1 at 7-9; Dennis v Watt (1942) 43 SR (NSW) 32 at 32, 33; Tritton v Clarke [2018] NSWCCA 31 at [25]-[29]).

104. A dispute as to the meaning of the Magistrate’s finding of fact cannot be resolved on an appeal to the Supreme Court that is confined to a question of law alone. The primary judge assumed that the Magistrate made no finding that the firefighters had been dismissed from duty during the period of their sleep or rest. It is understandable that the primary judge made that assumption because the focus of Fire and Rescue NSW’s submission was on whether the firefighters were working whilst they were sleeping. Nonetheless, the assumption was not warranted because the Magistrate had not accepted that the firefighters had remained on duty for the whole period of their deployment. The evidence did not mandate a finding either way.

105. It follows that the Union’s appeal, that was confined to a point of law, could only have succeeded if it were not open to Fire and Rescue NSW to dismiss a firefighter from duty when on deployment.

106. There is no express condition of the Award that supports the Union’s construction.

107. The definition of overtime is that it means for an Operational Firefighter time worked “with approval or direction in excess of the employee’s rostered shift”. It is inherent in the expression “time worked with approval or direction” that the employer can give a direction such that the employee no longer has approval to work for a particular period of time. The cases relied upon by the Union (at [55]) did not concern directions to cease overtime work and do not support a contrary construction.

108. Other clauses of the award are also against the Union’s construction. The Union’s construction would mean that because firefighters would be taken to have been working overtime for the whole period of their deployment, including the periods in which they were sleeping, their employer was required to provide them with a meal every four hours. On failure to provide such a meal, the employer would be liable to make a payment in lieu. But the employer’s primary responsibility would be to provide a Substantial Meal every four hours, on the Union’s case, even though the firefighters were sleeping (cl10).

109. The Union’s construction would mean that workers would not have at least eight hours off duty between successive shifts (cl 9.10). That is only allowable in the case of an emergency (cl 9.10). The context of the clause makes it clear that the emergency must be such as to necessitate longer working hours. Recall in the case of an incident (cl 9.6) need not be an emergency.

110. The Union submitted that overtime would be payable from the time the firefighter clocked in at the muster point and returned to the muster point. But on its construction, the muster point was not a relevant point for determining when a firefighter came on duty or ceased to be on duty. On the Union’s submission the time when a firefighter came on and left duty was determined by his reporting to his station. On the Union’s case, properly analysed, a firefighter would remain on duty and be entitled to overtime for 24 hours a day, until he returned to his station. This could be days after he returned from his deployment.

111. Fire and Rescue NSW’s construction of the Award should be accepted. If the deployed firefighters were dismissed from duty at times during their deployment, overtime was not payable. Whether they were so dismissed from duty during their deployment was a question of fact. Because the appeal lay on a question of law it was not open to the primary judge either to assume or find that the firefighters had not been dismissed from duty at times during their deployment, in the absence of a finding to that effect in the Local Court.

112. Accordingly the appeal should be allowed and it should be ordered that the Union’s amended summons filed on 3 May 2018 in the Supreme Court should be dismissed.

113. Fire and Rescue NSW is entitled to its costs of the appeal. Because the ground on which it succeeded was not ventilated in the court below, I propose that each party should bear its own costs in the court below.

114. Leave to appeal has been granted. I propose the following further orders:

1. Order that the name of the defendant in the Local Court and in the Common Law Division below be amended to “Industrial Relations Secretary”.

2. Appeal allowed.

3. Set aside the orders made on 1 July 2019.

4. In lieu thereof order that the amended summons filed on 3 May 2018 by the respondent in proceedings 2018/17674 be dismissed.

5. Order that the respondent pay the appellant’s costs of the appeal.

6. Order that there be no order as to costs of the proceedings in the Common Law Division to the intent that each party bear its own costs of those proceedings.

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Endnotes

Decision last updated: 23 March 2020