News

D&D Dispute – IRC Decision

October 28, 1999

NDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: WALTON J, Vice-President
HUNGERFORD J
CAMBRIDGE C

26 October 1999

MATTER NO. IRC 4048 OF 1999

NOTIFICATION UNDER SECTION 130 BY THE NEW SOUTH WALES FIRE BRIGADES OF A DISPUTE WITH THE NEW SOUTH WALES FIRE BRIGADE EMPLOYEES’ UNION RE INDUSTRIAL ACTION OVER DEATH AND DISABILITY BENEFITS.

DECISION OF THE COMMISSION
(ex tempore)

The application before the Commission is contained in exhibit S in these proceedings. That application for dispute orders replaced an earlier application for directions contained in exhibit H, in respect of which we made directions yesterday as to certain work concerned with automatic fire alarms (“AFAs”). The failure to carry out such work, at that time, it was submitted, constituted a risk to public safety.

At the commencement of the proceedings today, counsel for the Public Employment Office (“the employer”) moved on exhibit S for dispute orders and advised an understanding that the New South Wales Fire Brigade Employees’ Union (“the union”) rejected the directions earlier made by the Commission.

The proceedings thus went forward on the basis of evidence from the employer as to the detriments to public safety thereby occasioned; but, we stress, in the terms of exhibit S in relation to all industrial action.

It emerged towards the end of the submissions that the real issue concerned the automatic fire alarm question. That was the focus of the communication to the Commission on Friday last on behalf of the applicant employer.

In response to that issue, it was suggested to the union that it may properly be resolved by an undertaking being given by the union to the Commission that the industrial action in relation to automatic fire alarms be removed. However, if it be the fact that the union members were preventing the performance of certain work in relation to AFAs by other persons then active steps be taken to remove that impediment.

The undertaking so formulated was readily accepted by the union and the undertakings given. The employer acknowledged there was no residual issue concerning the AFAs having regard to the undertaking proposed. We accept the undertaking so given.

However, the applicant employer pressed for dispute orders in terms of exhibit S having regard to the balance of the industrial action.

As to that matter the employer conceded there was no evidence before the Commission as to any public safety issue. It was submitted that the Commission should nevertheless draw certain inferences from documents describing the bans. There was a contest as to the nature and effect of the bans brought by the union, although the union did say that “The bans are biting” (albeit in the context of all bans imposed by it).

Such bans, we emphasise, have effectively been in place for two months and the employer has taken no steps under the Industrial Relations Act 1996 for their removal (including the failure to lead evidence in relation to them in the proceedings today). We consider the applicant employer has had a relevant knowledge of all bans and limitations imposed by the union since August of this year.

We immediately recognise public interest considerations are attracted where a union is engaging in direct action, particularly in respect of a public authority such as the New South Wales Fire Brigades. However, in considering the exercise of its discretion to grant dispute orders, and in assessing the public interest in that context, the Commission will have regard to the history of the dispute, the conduct of the parties and, importantly, the evidence presented in support of the relief sought.

Here, we are not satisfied having regard to those matters that the public interest is sufficiently attracted as to warrant the grant of the relief sought at this time. In coming to that conclusion we make no adverse comment as to the steps taken by the Public Employment Office in attempting to resolve this matter by a series of extended exchanges with the union which ultimately did not bear fruit.

Equally, we should not be seen in any way as condoning the long-standing action of the union in engaging in industrial action in respect of which we emphasise the earlier dispute orders made by Commissioner Cambridge and the directions made by us yesterday still stand as made by the Commission. In the proper resolution of this dispute, it would be idle for us not to comment that we have an expectation that orders and directions of the Commission are complied with by the parties.

We refuse the application in exhibit S in light of the undertaking given by the union today.

Turning to the second question raised by the Commission, namely, whether the Commission should consider the making of an interim award, we note that the employer opposed the Commission making such a determination whilst industrial action was extant and the union opposed such a course per se. The union favoured legislation as distinct from an award.

We are not convinced the Commission should not proceed to consider whether an interim award should be made in settlement of this dispute. However, at this stage we propose only to direct the union to file and serve within 14 days a document which responds to the employer’s proposal in exhibit L by directly referring to each of the clauses in that document and indicating specifically those matters which are agreed or not agreed and, in the case of matters not agreed, by formulating an alternative draft clause. If there be any dispute as to jurisdiction raised with respect to any clause, then it should be so noted with an identification of the jurisdictional point.

Lastly, we note both parties expressed agreement that the papers in relation to this matter be referred to the Work Cover Authority of New South Wales. We direct that the Public Employment Office take that step.