SITREP No. 45/2010

November 12, 2010

Inside this issue:

  • Response to the “Commissioner’s update on recent industrial bans”
  • Another day, another defeat for the Department
  • College Christmas Shutdown

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Response to the “Commissioner’s update on recent industrial bans”

Last week the Union imposed relieving bans following the sacking of a member – QF Chris Osborne. The Commissioner issued a Q&A statement about that dispute on Monday. I have chosen to respond to each of the questions the Commissioner put to himself so that members can properly assess both sides of the argument. To that end I have also published both the Commissioner’s Q&A statement, and my answers, on the Union’s website and in the interest of balance and fairness, now invite Commissioner Mullins to do likewise on the Brigades’ intranet site.

Jim Casey

State Secretary

What is this dispute about?

Greg Mullins:

Last week the FBEU imposed relieving bans following my decision to terminate a firefighter’s employment.

Despite Orders made by the Industrial Relations Commission (IRC) to end the bans on 3 November, the FBEU left them in place until 8 November, costing the NSWFB and therefore the community of NSW around $500,000.

Jim Casey:

The Union imposed relieving bans last week not because the Commissioner sacked a member, but because of the means by which the member was sacked.

If the Commissioner had terminated Chris Osborne’s employment under either

  • Regulation 12(1)(a), which is that “the firefighter is no longer medically or psychologically fit to exercise the functions of a firefighter”; or
  • Regulation 46(1)(f) – Disciplinary action by Commissioner;

then there would have been no bans.

The Department was well aware of the Union’s opposition to the use of Regulation 12(1)(b), “the firefighter is no longer a suitable person to exercise the functions of a firefighter”, but used it anyway.

The key question: what standards do we expect of each other, and what is expected by the community?

Greg Mullins:

It is clear that firefighters have a most trusted position in the community and we each have the responsibility to uphold our values. The values are:

  • Commitment to safety
  • Honesty and integrity
  • Respect
  • Courage and selflessness
  • Professionalism, and
  • Teamwork

I believe any action taken that does not support our values is out of step with the expectations and best interests of firefighters, our staff and the community.

Jim Casey:

This is not the “key question” at all, and motherhood statements about firefighters’ values, which are not in dispute, cloud the real key question – the Commissioner’s abuse of Regulation 12(1)(b).

Was the decision harsh?

Greg Mullins:

For the record, I stand by my decision to terminate the firefighter’s employment. I believe that it was the correct thing to do given all of the circumstances, which, contrary to claims by the FBEU, were well researched and known.

In the interests of privacy of the person involved, I will not publicly discuss the reasons for my decision.

I believe my actions were in accordance with the values we share.

Jim Casey:

Yes, the decision was harsh, but that was not the cause of our bans.

The Union’s bans were over the use of 12(1)(b), not Chris Osborne or the merits of his sacking, but it no longer matters what the Commissioner, or I, or Ray Hadley thinks because the termination will now be reviewed and ruled upon by the Industrial Relations Commission and the Anti-Discrimination Board.

Was due process followed?

Greg Mullins:

Specific claims made by the FBEU cannot go unanswered, as they are untrue. For example:

“an affront to procedural fairness”  “The question is one of process. Incredibly, no one from the Department has contacted the member, at any time over the past eight months, to ask him what actually happened.” “not giving the member the opportunity to argue his case”

  • The FBEU advised the NSWFB that they were acting on the firefighter’s behalf and that all communication should be with the FBEU, not the member.
  • Notwithstanding the above, the NSWFB made early contact with the firefighter, and there is a significant record of ongoing correspondence and personal contact with him giving him the opportunity to put material before the NSWFB. The allegations that no contact was made and no opportunity given to “argue his case” are wrong.
  • Procedural fairness requires that the accusation be put to somebody and that they be given every opportunity to respond.
  • Every aspect of procedural fairness was observed by the NSWFB.

Jim Casey:

The Commissioner claims that “every aspect of procedural fairness was observed by the NSWFB”. The Union contends that Chris Osbourne was denied procedural fairness, and that the Department committed numerous procedural flaws in sacking him. Again, these claims will now be tested before IRC.

What is Regulation 12 (1) (b)?

Greg Mullins:

Given the claims by the FBEU, including that use of the Regulation avoids due process, I know that there are understandable questions about the regulation in the minds of many officers and firefighters. A copy of a recommendation made by Justice Boland in 2002 on the issue is therefore attached.

Justice Boland found that the ‘no longer suitable’ test had been in existence since 1992 and also noted that there was no evidence that the clause had been abused. In the 18 years of its existence, this is only the second time that it has been used by the NSWFB to remove a firefighter from employment (and the first occasion on which I have used it); this shows clear restraint by management in its rare application (as Justice Boland suggested should be the case).  In this particular case there were a number of unique aspects that required a different approach to the use of the Part 4 disciplinary path.

In the 2002 findings, Justice Boland noted the special position that firefighters hold in the community, and the high degree of trust and respect they receive. Part of my job is to protect this enviable and hard-won reputation. He further noted that the NSWFB has in place steps to ensure procedural fairness, including giving notice to a firefighter, providing time for them to respond and then considering their response, as has occurred on this occasion despite the FBEU assertions to the contrary.

Jim Casey:

The Union acknowledges that there may be occasions where the use of 12(1)(b) is appropriate. But this occasion was not one of them.

Commissioner Mullins has quoted selectively from Justice Boland’s 2002 recommendations, deliberately ignoring the obvious limitation placed on the use of 12(1)(b) to situations warranting “swift removal”. The Commissioner’s update completely ignores this important point, despite the fact that we put it right out there for all to see in our notice of 2 November:

How can the Commissioner, or his Minister, possibly justify the use of section 12(1)(b) of the Regulation – which the IRC made clear should be used “sparingly”, and then only in cases warranting “swift removal” – over six months after the alleged event?

Because the Union no longer has faith that 12(1)(b) will not be abused in future, I last week wrote to the Minister on the issue. The letter captures the Union’s concerns and our proposed amendment explains the sort of limited circumstances under which we could accept the use of 12(1)(b):

5 November 2010

The Hon. Steve Whan, MLA
Minister for Primary Industries, Minister for Emergency Services and Minister for Rural Affairs
Level 33 Governor Macquarie Tower
1 Farrer Place
SYDNEY   NSW   2000

By facsimile: 9228 3084

Dear Minister,

I write regarding the current industrial dispute, of which you are no doubt aware, concerning Commissioner Mullins’ reliance this week upon sub-regulation 12(1)(b) of the Fire Brigades Regulation 2008 to terminate the employment of a permanent firefighter. You would also be aware that the Union has long expressed concern over the potential misuse of section 12(1)(b), the issue having been the subject of considerable disputation between the parties and a consequent recommendation from the Industrial Relations Commission in 2002.

The Union’s concerns could be allayed, and the current dispute resolved, by the (hopefully self-explanatory) amendment of the Fire Brigades Regulation 2008, Part 2, Section 12, Termination of appointment, which presently reads:

(1)        The Commissioner may terminate a firefighter’s appointment as a firefighter:
(a)        if the firefighter is no longer medically or psychologically fit to exercise the functions of a firefighter, or
(b)        if the firefighter is no longer a suitable person to exercise the functions of a firefighter.

to instead read (with the proposed amendments highlighted):

(1)        The Commissioner may terminate a firefighter’s appointment as a firefighter:
(a)        if the firefighter is no longer medically or psychologically fit to exercise the functions of a firefighter, or

(b)        if the firefighter is no longer a suitable person to exercise the functions of a firefighter, provided that such power shall only be used in exceptional circumstances and only where it is not practicable or possible to have recourse to the usual disciplinary processes available elsewhere under the regulation. Examples of these circumstances include – abandonment of employment, incarceration for a serious offence (whether on remand or otherwise).

We look forward to your urgent attention to this matter. Please feel free to contact me should you wish to discuss this matter directly.

Yours sincerely,

Jim Casey

State Secretary

That letter was faxed to Minister’s office at 11am last Friday morning, and a telephone call was made immediately following to confirm that it had been received.

The Union would have lifted its bans immediately if the Minister had agreed, even if only in-principle. Lifting the Union bans on Friday afternoon, not Monday morning, would have saved his Department more than $300,000.

But the Minister did not respond to our letter. In fact he didn’t even read it. Despite the controversy surrounding the issue, the FBEU officials who met with the Minister on Wednesday 10 November were told that he still hadn’t read our letter, let alone replied. And there was still no reply by the time of writing this notice.

It’s difficult to sympathise with the Commissioner’s complaints about $500,000 bans when his Minister goes missing in important, time-critical matters like this.

Is this a precedent to make it easier to sack people?

Greg Mullins:

No. This was a unique case with a unique set of circumstances. Any decision to terminate a person’s employment is never taken lightly by the NSWFB, and weighs heavily on me personally.  However, that aside, I am clear about my duty to the NSW Government, the people of NSW and all members of the NSWFB to protect our good name, integrity and safety.

Jim Casey:

Had the Union allowed it to stand unchallenged, then the answer would have been a very clear yes.

Did the FBEU follow “due process”?

Greg Mullins:

Whilst the FBEU claims to be concerned about correct process and procedural fairness it chose not to use any of the legitimate avenues and tribunals available to exercise workers’ rights should the FBEU or the individual disagree with my decision.

Instead, the FBEU embarked on a course of illegal industrial action, breached Orders from the IRC, and cost the NSWFB and community around $500,000.

I ask that all firefighters seriously consider what they believe to be fair and reasonable in this situation, and share their views with me and with their union representatives in a respectful manner.

Jim Casey:

The Union commenced industrial action as soon as it learnt that the Commissioner had used Regulation 12(1)(b) to terminate the member on 2 November. The Union lifted its bans on Monday 8 November, confident that the Commissioner will think twice before he considers using 12(1)(b) against a member again.

So that explains our bans. Of course, the Union did access “the legitimate avenues and tribunals available to exercise workers’ rights” that Commissioner Mullins refers to, commencing unfair dismissal proceedings in the IRC. The matter is now listed for conciliation before Justice Boland, now the IRC’s President, on Monday 15 November at 2pm.

The Union will also next week lodge a complaint of disability discrimination against the Commissioner, Department and NSW Government with the Anti-Discrimination Board.

More to follow.

Another day, another defeat for the Department

On Monday the IRC awarded a member more than $37,000 in relocation expenses after the Department rejected his claim despite having repeatedly assured him that he would be paid Clause 29 entitlements on the sale of his Sydney home and relocation to the country. The Union took the matter to the IRC arguing that Department’s refusal to honour its prior approvals was ‘unconscionable, unfair and will, if not reversed, result in a significant financial impost being placed on him and his family’. The IRC agreed.

So why did the Department refuse to honour its prior approval of the entitlements? Because the new Director Human Resources ‘could not believe’ that such an entitlement could exist. Whilst the Union and the member are obviously happy that the IRC resolved this matter on more than just personal opinion, the simple fact is that we shouldn’t have to waste our time or the Commission’s in order to secure our Award entitlements.

College Christmas Shutdown

Management at the Education and Training Directorate have been telling members that the College will shut down over the Christmas period. The Department initially intended to force all members attached to Education and Training to take annual leave from 27 December to 7 January, but appears to have revised its position after member backlash and is now proposing to ‘redeploy’ college staff who do not wish to use their annual leave.

The Union is curious to learn on what authority the Department intends to implement this and what it proposes to pay members during the ‘Christmas Redeployment’ – relieving allowance, kilometres, travel time, etc ?. Nowhere in the Brigades, Permanent or Retained, operates with different staffing levels according to the time of year and it is incredible for the Department to think that it could introduce such a radical change before entering into negotiations with the Union.

Jim Casey
State Secretary



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