The issue of paying overtime for RFS employees is before the Industrial Relations Commission. In Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary, on behalf of the NSW Rural Fire Service [2023] NSWIRComm 1052 the Commission made recommendations, but not orders, regarding the dispute.

The issue is that the Crown Employees (Rural Fire Service) Award 2019 (the “RFS Award”) refers to ‘overtime’ as work ‘approved or directed’ by the RFS whereas the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 (the “Conditions Award”) says that an employee will only be paid at overtime rates when directed to work overtime.   The Union argued that the RFS should allow hour-for-hour time off in lieu of overtime worked between 7.30am and 6pm.

The Union argued that the phrase ‘direction’ should include work done in response to a request from the RFS and also where ‘work which is performed as a requirement of the employee’s role’ ([13(g)].  This issue is important, as the Commission explained at [23]-[26], because:

The work performed by the relevant members of the [Union] subject of this dispute includes:

  1. Supporting volunteer members with resourcing, training, preparation, and internal brigade management which may include arranging and attending volunteer training, brigade meetings and medal ceremonies.
  2. Supporting volunteer members in relation to operational work, including incident response and risk mitigation and incident response.
  3. Area Mitigation, who supplement volunteers in performing mitigation work such as backburning and cutting fire trails, logistical driving duties and operational support duties on weekends including maintenance of Large Air Tanker (water bomber) bases.
  4. Headquarters, which provides support including senior management, human resources, communications and other supp and legislative functions.…

Those who perform work outside of the hours [7.30am to 6.00pm] … are rarely paid overtime for this work and apart from some members who receive an annualised conditions allowance (“ACA”), they are usually provided time off in lieu at single hour for hour under a “Local Arrangement”, commonly referred to as a “LA”.

It is this failure of the respondent to pay the notifier’s members at overtime rates which is at the heart of the dispute.

The Union argued that this work should be considered ‘overtime’ even if there is no express direction because the work is authorised by implication because, amongst other reasons, ‘the circumstances of the availability of volunteers permit of no alternative manner in which the work can be performed’ ([37(i)]). The union argued that the ‘absence of an express direction or authorisation does not mean that the work is not authorised or impliedly directed’.

Interestingly the RFS said ‘that they would not follow a recommendation made by the Commission in a form sought by the notifier nor any other recommendation for which it did not agree with’ ([39]). The Union argued that the RFS was bound to accept any recommendation from the Commission as the relevant award said (emphasis added):

9.10 The staff member, Association, Department and Secretary shall agree to be bound by any order or determination by the New South Wales Industrial Relations Commission in relation to the dispute.

A recommendation was not, according the RFS an ‘order or determination’ ([41]). The Union argued there was still value in making recommendations as the Commission should not (at [29]):

… countenance the respondent’s threat as it undermines the practical ability of the Commission to resolve the industrial dispute and to satisfy its objects under s 3 of the Act. It also amounts to a rejection of the long standing and effective system of conciliation and arbitration …

In any event the RFS said they were only required to pay overtime where work was directed and this meant ‘overtime which is worked following authoritative instruction, command, order or ordnance’ ([44]). They gave these examples (also at [44]):

25.   A manager sends an email to a group of staff asking who is available to attend to various meetings. No member of staff is obliged to attend any particular meeting, but each is able to indicate that they can or cannot attend a particular meeting. A member of staff indicates that they are able and willing to attend a particular meeting, and does so. It cannot sensibly be said that the manager’s question constitutes a direction to work overtime in circumstances where there is no obligation on any employee to perform any particular task.

26.   If, on the other hand, a manager tells a particular employee that they must carry out a particular task outside hours that would obviously constitute a direction to work overtime.

Result

The Commission agreed that it had the power to make a recommendation but that a recommendation was not binding upon the parties ([46]). Notwithstanding that Commissioner O’Sullivan decided that he would make a recommendation because (at [52]) ‘I have reached the conclusion that neither parties’ interpretation of the meaning of “directed overtime” which gives rise to the payment of overtime for work performed is correct.’ Commissioner O’Sullivan said (at [53]-[54]):

The [union’s] position that all work performed outside of the hours in cl 7.9 [ie 7.30am to 6pm] of the RFS Award is “directed” overtime and is to be paid as such irrespective of even if it is at the initiative/request of the employee is contrary to the evidence … as to the reason why such overtime needed to be “directed”.

And:

The [RFS’] position that the work is only “directed” if there is an authoritative instruction, command, order or ordnance, runs counter to how modern workplaces operates [sic]. Further, if this approach is to be accepted, it may inevitably lead to members of the [union] continuously refusing requests to work overtime until such time they instructed etc to do so in order to receive overtime payment.

The Commission’s recommendation (at [55]) is that the parties ‘confer with a view to agreeing on the requirements of what work is to be treated as overtime and paid as such for the purposes’.

Discussion

This decision is reported as I’m sure many in the RFS, in particular the volunteers, would not be aware of the ongoing issue.  

I also think the attitude of the RFS to the effect that they would not follow recommendations that they did not agree with was surprising, but clearly the law as recognised by the Commission.  And the RFS’ attitude was perhaps not so surprising when it is considered that the Union was asking the Commission to make recommendations basically that the RFS interpret the various clauses in the way proposed by the Union.  If the recommendations were binding the Union was asking the Commission to resole the dispute in their favour without a full hearing of the issues so it is understandable that the RFS would not want to be bound by recommendations, and the Commission would not want to make recommendations that would basically finalise the dispute in proceedings that were not intended to be a final hearing.

At the end of the day though it is not clear what, if anything, was achieved with a recommendation that the parties go back to talking to each other to see if they can come up with an interpretation of the two awards and what ‘directed’ will be understood to mean.

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 the 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.