Fire Brigade Employees’ Union of New South Wales v Fire and Rescue NSW [2020] NSWIRComm 1016

Fire Brigade Employees’ Union of New South Wales v Fire and Rescue NSW [2020] NSWIRComm 1016

The notification disclosed a dispute about an industrial matter within the broad meaning of s 6 of the Industrial Relations Act 1996 (NSW), enlivening the Commission's Ch 3 jurisdiction under s 130. Chapter 2 Pt 7 does not operate to the exclusion of Ch 3, as s 97(1) only identifies appealable decisions and s 99 contemplates alternative proceedings. Neither the Fire and Rescue NSW Act 1989 (NSW) nor the subordinate Fire Brigades Regulation 2014 (NSW) expressly or impliedly ousts that jurisdiction, and the Regulation could not deprive the Commission of jurisdiction conferred by the IR Act. Fire and Rescue NSW failed to show that no order could be made within jurisdiction, so its dismissal...

Jurisdiction
Australia
Judgment Date
13 March 2020
Procedural Posture
Industrial Dispute Notification Under S 130 of the Industrial Relations Act 1996 (nsw), With Interlocutory Notice of Motion Challenging Jurisdiction / Interlocutory Judgment on Fire and Rescue Nsw's Notice of Motion to Dismiss the Notification and Orders Sought
Outcome
Fire and Rescue NSW's notice of motion was dismissed, and the matter was listed for directions.
Legal Topics
['industrial Relations Commission Jurisdiction' 'public Sector Disciplinary Appeals' 'industrial Disputes Under Ch 3 of the Industrial Relations Act 1996 (nsw)' 'firefighter Misconduct and Remedial Action' 'subordinate Legislation and Ouster of Jurisdiction']
['employment and Industrial Law'] ['industrial Relations Commission Jurisdiction' 'public Sector Disciplinary Appeals' 'industrial Disputes Under Ch 3 of the Industrial Relations Act 1996 (nsw)' 'firefighter Misconduct and Remedial Action' 'subordinate Legislation and Ouster of Jurisdiction']

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Procedural Posture

Industrial Dispute Notification Under S 130 of the Industrial Relations Act 1996 (nsw), With Interlocutory Notice of Motion Challenging Jurisdiction / Interlocutory Judgment on Fire and Rescue Nsw's Notice of Motion to Dismiss the Notification and Orders Sought

Legal Issues

  1. 1 ["Whether the Commission's jurisdiction to deal with disciplinary or remedial action against an employee is confined to Ch 2 Pt 7 of the Industrial Relations Act 1996 (NSW)." 'Whether disciplinary or remedial action taken against a firefighter can be an industrial dispute able to be dealt with under Ch 3 of the Industrial Relations Act 1996 (NSW).' 'Whether the Fire Brigades Regulation 2014 (NSW) or the Fire and Rescue NSW Act 1989 (NSW) deprives the Commission of jurisdiction otherwise conferred by the Industrial Relations Act 1996 (NSW).' 'Whether the orders sought by the FBEU being allegedly beyond power required dismissal for want of jurisdiction.']

Ratio Decidendi

The notification disclosed a dispute about an industrial matter within the broad meaning of s 6 of the Industrial Relations Act 1996 (NSW), enlivening the Commission's Ch 3 jurisdiction under s 130. Chapter 2 Pt 7 does not operate to the exclusion of Ch 3, as s 97(1) only identifies appealable decisions and s 99 contemplates alternative proceedings. Neither the Fire and Rescue NSW Act 1989 (NSW) nor the subordinate Fire Brigades Regulation 2014 (NSW) expressly or impliedly ousts that jurisdiction, and the Regulation could not deprive the Commission of jurisdiction conferred by the IR Act. Fire and Rescue NSW failed to show that no order could be made within jurisdiction, so its dismissal...

Court Disposition

Fire and Rescue NSW's notice of motion was dismissed, and the matter was listed for directions.

Orders

  • ['The notice of motion filed by Fire and Rescue NSW on 4 December 2019 is dismissed.' 'The matter is listed for directions, to be conducted by teleconference, at 9.00am on Friday, 20 March 2020.']