April 12, 2005
Inside this notice:
- Deaprtment’s appeal thrown out by Supreme Court
- ADT Rejects Department’s “flimsy” privacy defence
- Let them eat cake
- Public Safety Training Package
- Award tip – Personal Carers Leave
- May Day reminder
Department’s Appeal Thrown Out by Supreme Court
The Supreme Court of NSW has thrown out the Department’s shameful appeal against the Administrative Decisions Tribunal (ADT) Review Panel’s decision that it directly discriminated against a member on alternate duties by denying him training and promotional opportunities throughout his career.
As reported in our Notice of 7 October 2004, the Department’s appeal seemed to be based on the bogus premise that because the decision not to promote our member took place prior to the Anti Discrimination Act coming into force, that decision couldn’t have been a contravention of that Act. They didn’t even try to argue that it wasn’t discriminatory. The fact that the decision has had continuing adverse effects on our member over the last 30 years seems to have troubled the Department’s mind not one bit.
Not surprisingly, Supreme Court Justice Greg James dismissed each of the Department’s grounds for appeal, and ordered that it pay our costs, which have now reached over $100,000. Only the Department’s accountants, and possibly the Auditor-General of NSW will know how much this shabby exercise has cost it.
Hopefully the Department now recognizes they have lost the battle (this is the 3rd time they have lost this case), reflect on themselves and not the Union, and stop acting like some old Japanese soldiers emerging from the jungle, unaware that the war is over. Perhaps they will also now understand that EEO principles do apply to them.
This case, and the privacy decision reported below, illustrate the importance of remaining a member of the Union throughout your career. Not many individual workers could afford to carry the massive legal costs associated with such a case. Even fewer could risk continuing with a case where you not only had to pay your own legal costs, but potentially those of the other side if the court found against you. The disparity between the resources of the Department, with its bottomless pockets of cash which it deploys without hesitation when trying to deny members’ rights and entitlements stands in stark contrast.
ADT Rejects Department’s “flimsy” privacy defence
As reported in our Notices of 25 August and 7 October 2004, the Union has been prosecuting the Department before the Administrative Decisions Tribunal in relation to the release of a retained member’s attendance records from his station’s occurrence book to his primary employer, without his knowledge or consent, which resulted in summary dismissal from his primary job.
In its feeble defence, the Department filed an affidavit which states (in part) that:
“Fire station occurrence books are public documents and are routinely accessed by the public.”
Well, not only was nobody able to claim our prize of a Union t-shirt to the first member who could fax us evidence of just one occasion when your Stn’s occurrence book was “routinely” accessed by the public, but the ADT hasn’t bought the Department’s line either.
In his decision of 1 April 2005, the ADT’s President O’Connor rejected the Department’s assertion that information in a fire station occurrence book is public and not “personal information” as defined in the Privacy Act, and found that they had contravened s18 (1) of the Privacy & Personal Information Protection Act 1998:
“A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency.”
The matter will now be re-listed for determination of an appropriate Order in remedy against the Department’s contravention.
Let Them Eat Cake
The Department’s contempt for members reached new lows last week in the IRC, as they argued that the only times meals and refreshments (or allowances in lieu thereof) should be provided was when members attend incidents or hazard reductions. This is completely at odds with how the relevant Award clause has been applied by both the Union and the Department since its inclusion in the 1997 Award, since when they have been provided to members who are away from their station (and therefore amenities) on brigade business for the relevant length of time.
This is nothing but a cowardly get square for the bans imposed by the Union back last November after Region North management (with too much time on their hands) illegally deducted the cost of refreshments that a Station Officer provided his crew whilst they were away from their station on brigade business. Note that a refreshment allowance wasn’t paid, but an actual cup of coffee and a scone was provided. The Union will be prosecuting the Department over something that only the dodgiest of employers do. Hardly the stuff of a Schedule 1 listed State Government Department.
The absurd thing is, that if the Department get their way at the IRC, a large chunk of the relevant Award clause will be rendered obsolete. Cl 10.1.1 currently reads:
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. (our emphasis)
When questioned during proceedings what would constitute “any similar situation …” one of the Department’s witnesses responded along the lines that it was general firefighting duties of a physical nature. If anyone knows what this means, please let us know. The Department’s stance means that you could be away from your station for any length of time, and as long as it’s not at an incident or hazard reduction you won’t be provided with a refreshment or a meal.
Hopefully, the IRC won’t support the Department’s attempt to claw back Award entitlements that were agreed some eight years ago, and have been applied as per that agreement since then, on the basis of a pedantic interpretation of the clause. After all, they are supposed to provide for the “resolution of industrial disputes…in a prompt and fair manner and with a minimum of technicality.”(s3 (g) Industrial Relations Act 1996).
Public Safety Training Package
Many members are wondering what is happening with the training curriculum since the Union ban on the implementation of the Public Safety Training Package (PSTP). The history was that the Australian Fire Competencies were to be replaced nationally, by a course which had been developed externally called the PSTP. Your Union identified many problems with this course due to its attempt to capture all agencies (including volunteer), a change to assessment and what we believed an inappropriate curriculum for a professional Fire Service.
Since the initial ban the Union has worked with the Department to model a new PSTP around NSW Fire Fighters and we believe lift the level of qualifications to a truly professional service. The Union is committed to advancing the skill levels of members but is being held back by unresolved productivity negotiations. Currently there is no formal agreement on the productivity that will be delivered to the Department, Government and Community by significant increases in firefighter skill levels and reduced external costs resulting from the implementation of the PSTP. The Union believes the PSTP to be a revolutionary change in training with increased formal qualifications that will see, for example, the awarding of a Diploma in Public Safety (Firefighting Management) to Station Officers.
Commitment has also been made to the future development of higher qualifications at a rank still to be determined. The planned implementation of an Officer Development Program will help to round off the total educational package within the NSW Fire Brigades by addressing a host of inequities created since the introduction of CBT in the mid nineties. Therefore all current Station Officers will be given the opportunity through the Department to attain the necessary competencies for the awarding of the Diploma.
Should the Union reach agreement with the Department on the form of the productivity acknowledgement for the PSTP, a round of forums jointly run between the Department and Union will explain to members; the content, details of delivery, assessment, transitional arrangements from the AFC’s to the PSTP, and the qualifications to be awarded.
Award tip – Personal Carer’s Leave
Members are reminded that the purpose of personal carer’s leave is to provide care and support to a spouse, partner, child or relative when they are ill.
Unfortunately, the clause is not about providing childcare. It is only applicable where you are caring for a family member who is ill, whether at home or in hospital.
For example if your spouse was away visiting family and you were required to stay home to take care of your children, you would not be entitled to use personal carer’s leave. If however you were required to provide care and support for your spouse or a child who was ill then you would be entitled to the provisions of Clause 22.
When completing statutory declarations for the purpose of claiming personal carer’s leave, members should be very clear in identifying exactly who was ill and thus required your care and support.
May Day Reminder
As per our Notice of 6 April, the 2005 Sydney May Day celebrations are being held on Sunday, 1st May, and all FBEU members are again invited and encouraged to attend. FBEU T-shirts, a BBQ lunch and a few afternoon drinks will be provided for members and their families who come along for what everyone who’s been agrees has become a great firies’ day out.
May Day is an opportunity to meet up with old work friends, meet other members and your elected officials, and to show the public, and the bosses that firies are Union and Proud.
As is usual, we will assemble at the Union Office from 1030 hours for the March commencing at 12 noon that proceeds from Hyde Park North to the Town Hall.