In Fire Brigade Employees’ Union of New South Wales v Industrial Relations Secretary on behalf of Fire and Rescue NSW [2022] NSWIRComm 1016, the Union challenged proposals put forward by Fire and Rescue NSW (FRNSW) to deal with situations where there are insufficient numbers of retained (ie part time) firefighters available to staff an appliance.  FRNSW had proposed new orders to deal with the situation. In simple terms they would move permanent appliances around the network to cover gaps before recalling permanent firefighters (who would then be paid overtime and relief penalties) to fill the gaps.

At [8], [10] and [13] the Commission said of the proposed arrangements:

First, the list of stations at which a pumper may be taken off line would increase from 34 to 56. FRNSW described the Proposed In Order as providing that “an additional 22 fire appliances at retained stations across the State may be taken offline”, representing “4.35% of the entire operational fleet and a 15% increase in the number of appliances available to be taken offline under In Order 2008/22” …

Second, the Proposed In Order would add a step in the crew supplementation process by allowing a permanent appliance and crew to be moved up to cover a retained station with a staff shortage, prior to the recall of off-duty permanent firefighters. …

Third, where a retained appliance has been taken off line due to a staff shortage, the Proposed In Order would permit a crew of two to respond to an incident with the appliance, provided that they engage only in defensive firefighting until sufficient number of firefighters have arrived to allow for a change in firefighting strategy…

The FBEU opposed the new order on the basis that

(a)   by allowing additional stations to be taken offline, the Proposed In Order will on average result in an increase in the response time and therefore have an adverse impact on FRNSW’s firefighting ability; [and]

(b)   the changes introduced by the Proposed In Order will pose safety risks for firefighters;…

The Union argued (at [65]) that no fire appliance should be taken ‘off line’ but the evidence was that fire appliances were moved between stations all the time, necessarily leaving some stations without an appliance. Commissioner Sloan said ([68]-[71]):

This evidence demonstrates that the FRNSW system is already being treated as a network capability. The question appears to be whether in this context a permanent appliance ought to be capable of being moved up to address staffing shortages at a retained station. I make two observations.

First, I consider that a restrictive, prescriptive and inflexible approach to the taking off line of appliances or stations due to staff shortages is inconsistent with a modern approach to risk management. Such an approach would be out of step with the manner in which the network capability is deployed by FRNSW for other operational reasons.

Second, the decision to take an appliance off line is not irreversible. The evidence demonstrated that if the staffing shortage at a retained station is resolved, the appliance will be restored to online status.

I find that the adoption of the Proposed In Order, underpinned by the Resource Index, the RAM and the DCT, is more reflective of a contemporary approach to incident and risk management than the perpetuation of the more rigid approach mandated by In Order 2008/22.

It was agreed that taking appliances off line could increase the risk to the public by increasing response time and decreasing the resources in the network ([83]-[84]).  As Commissioner Sloane noted (at [85]):

The question becomes whether any such risk warrants the intervention of the Commission, or is properly to be left managed by the Commissioner of FRNSW within the purview of his statutory mandate. 

The problem is that retained fire stations are largely in rural and regional areas of the state ([91]) and necessarily have a slower response time than city based permanent brigades. The evidence was (at [93]-[95]):

… that after 10 minutes a fire crew would be unlikely to be looking at saving lives and property, but rather “protecting exposures”.

It was common ground that it takes a fully staffed retained station, on average, approximately 15 minutes to arrive at an incident.In those circumstances, it is difficult to see on the evidence adduced by the FBEU how any additional delays would be significantly more likely to result in loss of life or property.

It was also reasonably common ground that where a permanent station moves up to a retained station, the local area will be better protected as the permanent crew will be able to respond more quickly to an incident than a retained one. This is a relevant consideration, albeit not a complete answer to the FBEU’s concerns. While move ups would be permitted under the Proposed In Order, it could not happen in every case. There will be instances where retained stations will be taken off line.

Further, there was evidence to suggest that allowing for at least two firefighters to attend an incident with an appliance and engage in defensive firefighting might enhance public safety…

Commissioner Sloan concluded (at [98]):

… in light of all of the evidence, I am not persuaded that to the extent that the Proposed In Order might increase response times, it would have a material bearing on public safety, either in terms of lives or property lost.

As for allowing less than four firefighters to respond to an incident but only to engage in defensive fire fighting, this had been the policy at FRNSW since at least 2008.Commissioner Sloan said (at [113]):

I am not persuaded that by allowing a minimum of two firefighters to attend an incident with an appliance the Proposed In Order materially increases the risks to firefighters. I do not accept the premise of the FBEU’s case that, in essence, firefighters cannot be trusted to comply with FRNSW’s policies and procedures, when the evidence overall suggests the contrary. The Proposed In Order does not, in this regard, impose unfair or unreasonable demands on firefighters.

Conclusion

The Fire Brigade Employee’s Union had sought an order ‘to the effect “that FRNSW is not to implement the Proposed In Order’ rather the status quo (set out in In Order 2008/22) was to be retained. We do not need to detail what In Order 2008/22 says.  We only need to note that the FBEU’s application was denied allow FRNSW to implement the new process that may see more retained appliances taken off line where there are insufficient retained firefighters to form a crew; and permanent firefighters will be moved around the network to fill the gaps left by the reduced capacity.  It will also be the case that where there are less than four retained firefighters, they may (not must; see [109] and [122]) respond to a fire call but must limit their response to defensive firefighting only.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and  NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.