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REASONABLE WORKING HOURS VOLUNTARY SECONDARY WORK ETHIC OF NSW FIRE BRIGADES FIREFIGHTERS

Submission by CHARLES H NORVILLE 6A Kahibah Street SWANSEA NSW 2281 Ph: (02) 49720050 Mob: 0419 343234 Em: norville@nobbys.net.au 28 Nov. 01 Your Honours & Justice Geoffrey Giudice - The President, AIRC C/O Deputy Industrial Register - AIRC L18 80 William Street, SYDNEY 2011 RE: AN APPLICATION DEALING WITH REASONABLE WORKING HOURS CURRENTLY BEFORE THIS COMMISSION

PART A PRELIMINARY
1. Your Honours, my submission concerns the long-standing secondary work ethic of NSW Fire Brigades firefighters and the unreasonable effects on NSW Statute regardless of such an ethic being voluntary. Because the effects concerns NSW Statutes there is the public Interest to consider. There is also a need to elucidate to some extent what permits such an ethic apart from the obvious condonation by the instruments of Government in NSW. 2. My argument concerns various parties who are in complicity to the extensive hours of work beyond that of what I believe to be a reasonable maxim of working hours based on the OH&S and welfare of firefighters and the public. These parties are representatives for the Crown in NSW and the Union movement: PART A PRELIMINARY cont

2 of 45 CHN SUBMISSION 1) NSW Fire Brigades (Crown Employer); 2) The relevant Minister for Emergency Services (Minister of the Crown); 3) The NSW Ombudsmans Office (Crown Administrator); 4) The NSW Fire Brigades Employees Union (ACTU affiliate) 5) There are others such as the WorkCover Authority; ICAC & The Audit Office of NSW 3. It should be realised that there has always been a general perception by people that it is normal for firefighters to have second jobs. However the Public are unaware of the obvious compromises that secondary work ethic promotes. This ethic is known well as quarrying and the more profitable exponents are called quarry kings or quarry merchants. Quarrying is adverse because: (a) The Public Interest is not served regardless of those in the community who may approve (b) The statutory duty functions and efficiencies are affected and are not served adequately and it undermines the discipline of the Fire Brigades; (c) The ethic undermines awards and conditions of other employees in other industries preventing equitable employment of those NSW volunteer firefighters who are by Statute prevented from being paid any emoluments for their services; (d) Permits breaches in Commonwealth and State Law: i) ii) iii) tax avoidance workers compensation fraud and other prohibitions; it is contrary to NSW Statutes: 1. Occupational Health & Safety Act 2000 & previously the Act of 1983; and 2. The Fire Brigades Act 1989 and Fire Brigades Act (General) Regulation 1997; 3. There are also contraventions regarding NSW Statutes that give rise to either constitutionally bad law or the misinterpretation of Statute by the instruments of Government. (e) Quarrying demonstrates socially pervasive and corrupt behaviour breaching duty of care

PART A PRELIMINARY cont

3 of 45 CHN SUBMISSION 4. It is my main contention that as the Fire Brigades Act 1989 and its Regulation of 1997 is congruous with the Occupational Health & Safety Act if there is any adverse affect/effect possible as a result of quarrying then the ethic should be illegal. To be vigilant an emergency service needs to take reasonable (OH&S Act) steps that are practicable (FB Act) to protect and prevent lose of life prescribed by the Parliament. It is not reasonable to ignore or purport that quarrying would have nil affect/effect on the performance of functions and duties and implementation of the power prescribed under the Fire Brigades Act 1989 (Regs 1997) and the Occupational Health & Safety Act 2000. 5. QUARRYING: definition: a voluntary secondary work ethic by NSW permanent firefighters, which may be either concerned with private or public sector secondary employment, generally involving the internal and external networking of casualised employment. _______________

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PART B CONTENTIONS
1. That the NSW Fire Brigades has promoted and assisted

permanent firefighting members via its Brigades intra net site Groupwise to operate their quarries. 2. members. 3. The NSW Crown Instruments of the relevant Ministry, Emergency That the NSW Fire Brigades have no strategy to control the

excessive hours worked by firefighters both permanent and retained

Services and the Office of the Ombudsman and others condone the activities of quarrying. In doing so promotes: a) The internal and external networking of quarrying where the hiring of firefighters undermines, inter alia, the efficiency, discipline and good conduct of firefighters S 67 FB Act; b) c) The unlawful contract and illegal avoidance to limit PAYG The avoidance of Workers Compensation insurance by taxation and compulsory employer superannuation contribution; the quarry employer and instead relying upon the Fire Brigades WC insurance when injuries are sustained. 4. a) The NSW Fire Brigades Employees Union: Condones quarrying and is actively seeking extensive Death & Disability (D&D) retirement cover for permanent members whist they are carrying out their quarrying; b) Inconsistently does not seek as a minimum, extensive D&D for retained members whilst they are carrying out their statutory duties on unlimited standby under the NSW Fire Brigades Act; c) Promotes a trend toward exclusive hiring of firefighters for under award wages and conditions and the avoidances mentioned above (3); 5.

If NSW Statutes condones quarrying of one group of firefighters

but prescribes unpaid voluntary work in identical functions of an alternate group there exists a serious Constitutional anomaly, where those quarrying take the jobs of those who are prescribed volunteers.

5 of 45 CHN SUBMISSION PART B CONTENTIONS cont 6. Statutes of: (a) The duties of the Fire Brigades Act 1989 & its Regulation 1997 and (b) The duties and objects of Occupational Health & Safety Act 2000 (congruent with the Act of 1983). 7. HOW QUARRYING CONFLICTS WITH THE OCCUPATIONAL HEALTH & SAFETY ACT 2000 AND FIRE BRIGADES ACT 1989 7a. CONTENTION CONSIDERATIONS: The core duties breaches of the OH&S Act and Fire Brigades Act & Regulation and the Sections and Clauses that directly effect quarrying: A. General Duties of the Occupational Health and Safety Act 2000. Have these duties been breached? Are the core duties and powers of the Fire Brigades Act 1989 consistent with those of the OH&S Act? B. Brigades activities are far more onerous on permanent full-time members of the NSW Fire Brigades as primary employees acting on behalf of the primary employer NSW Fire Brigades have tenure above that of part-time members. (S9(2) of FB Act revoke of employment) C. If the core Duties of the OH&S Act are breached then the Section 3 Objectives are manifestly so. The activities of quarrying are essentially inconsistent with NSW

I) S10 Exercise of functions by officers and agents - FB

The Commissioner may exercise the Commissioner's functions under this Act by his or her officers or agents (including the members of any permanent fire brigade) or by the members of any volunteer fire brigade. COMMENT: The Primary Employer delegates power and duties to those who must carry out and give effect to those powers and duties to the permanent members and part-time members of the NSW Fire Brigades. However S9(2) of the FB Act allows the revoke of approval for part-time firefighters and there is no automatic tenure to the permanent ranks of employment. Therefore in essence S10 has more relevance to those members with tenure ie the permanent full-time firefighting members.

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II) S6 Duty to deal with fires and hazardous material incidents - FB

(1) It is the duty of the Commissioner to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district. (2) It is the duty of the Commissioner to take all practicable measures: (a) for protecting and saving life and property endangered by hazardous material incidents, and (b) for confining or ending such an incident, and (c) for rendering the site of such an incident safe. S7 General authority to protect persons and property - FB (1) The Commissioner is authorised to take measures anywhere in the State for protecting persons from injury or death and property from damage, whether or not fire or a hazardous material incident is involved. (2) In the case of fire, it does not matter whether or not the persons are, or the property is, within a fire district. COMMENT: The duty function to take practicable measures amounts to the use of power in acting fairly and responsibly and taking the reasonable steps to protect life and property. Sections 6 & 7 are the core functions of the Fire Brigades Act to which requires that the power abilities are complemented by the efficiency discipline and good conduct of its statutory instruments instruments of the Crown (the people), are the permanent and part-time members of the NSW Fire Brigades.

III) S67 Efficiency, discipline and good conduct FB

The Commissioner is responsible for maintaining the efficiency, discipline and good conduct of the members of fire brigades. COMMENT: Quarrying is an unrestrained work ethic and clearly affects the performance of efficiency, discipline and good conduct of firefighters.

IV) S78 Protection from liability FB

A matter or thing done by the Minister, the Commissioner, any member of staff of the Department, any member of a fire brigade or any person acting under the authority of the Commissioner does not, if the matter or thing was done in good

7 of 45 CHN SUBMISSION PART B CONTENTIONS cont faith for the purposes of executing this or any other Act, subject such a person personally, or the Crown, to any action, liability, claim or demand. COMMENT: If the efficiency discipline and good conduct of firefighters is under threat due to the wide spread phenomenon of quarrying which is condoned by the Minister, the Commissioner and Government instruments such as the Ombudsman, the illicit activity of quarrying cannot be seen as a bone fide act adversely effecting the outcome of duty functions under the Fire Brigades Act 1989 and Occupational Health & Safety Act 2000. V) C14 Firefighters to acquire and maintain knowledge of legislation, orders and duties - FB (1) A firefighter must acquire and maintain a thorough knowledge of, and must comply with the requirements of, the Act, this Regulation and the Commissioner's Orders. (2) A firefighter must acquire and maintain the knowledge and skills that are relevant to the performance of the firefighter's duties. FB COMMENT: C14 is compatible with efficiency, discipline, and good conduct of firefighters S67 and S78 with respect of the protection from liability. It is neither responsible, fair, practicable, nor good faith to have permanent members acting with duplicity in total work function by sharing an undefined maxim of work hours with quarrying by deviating from an essential focusing of statutory functions.

See attached article Some helpful heresy by Vincent Brannigan Annexure K VI) C16 Duty to obey orders and act fairly and responsibly FB
(e) by negligence or otherwise, allow any loss, damage or injury to occur to any person or property, or COMMENT: It is neither fair nor responsible to have self-employed quarryers taking full advantage of an open-ended work agreement which could amount to loss, damage, injury or death.

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VII) C18 Damage or misuse of departmental property FB

(2) firefighter must not use a fire appliance or other departmental property for an unauthorised purpose or be concerned, whether directly or indirectly, in its unauthorised use. COMMENT: Some quarryers run their quarry businesses form fire stations that suffer from departures of organised management procedures. Honest station commanders on their own do not have the Brigades support or monitoring capacity to limit the adverse activities of quarrying. The NSW Statute via the advice of various Government instruments permits the activity of quarrying. The operation of quarries directly from fire stations is a conflict of authorised use of brigade property together with the use of the brigades intranet site and computers to advertise quarries NB THIS PRACTISE HAS BEEN REDUCED AND TRANSFERRED TO A WEB SITE FIRIES BUSINESS NETWORK: www.network54.com/hide/forum/127499.

See download from Firies Business Network Annexure A VIII) C21 Solicitation, acceptance or retention of rewards or other benefits
FB A firefighter must not: (a) directly or indirectly solicit or accept a pecuniary or material reward in connection with the exercise of the firefighter's functions, or COMMENT: Quarrying exists by virtue of the pecuniary and material reward offered members due to the highly flexible shift work and on duty standby arrangements. By virtue of the condonation and insistence by the parties involved in its promotion, that such ethos is allegedly consistent with statutory provisions. I.e. the instruments of Government cannot limit the process that are involved in quarrying so they blindly support it. Quarrying promotes the networking of an internal FB labour that is highly flexible, works below award, and can claim Workers Compensation benefits from a flag of convenience employer NSW FB.

See email from MLA B Carr & Email sent to MLAs Annexure B&C

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IX) C24 Incompatible activities FB

A firefighter must not engage in any activity outside the firefighter's duties as a firefighter if to do so would be incompatible with the performance of those duties. COMMENT: Allowing quarrying cant ensure protection of the public when the employer NSW Fire Brigades and respective Ministry considers wrongly that FB Statute provides no maxim of work hours. The quarry kings may employ other firefighters internal networking. Their quarries can have such high capital yields that in fact the normal work roster of this activity can be affected requiring their proxy duty attendances by other firefighters under shift swap arrangements permitted by the FB the quarry merchants paying for the proxy attendances not permitted by the FB but however not policed. X) C27 Recall of offduty firefighters FB (1) A firefighter who is off duty (including a firefighter who is on leave) may be recalled to duty in an emergency unless the firefighter is on sick leave, in court or subject to a subpoena to appear in court. (2) A firefighter must ensure that the Commissioner is kept aware of where and how the firefighter may be contacted in an emergency. COMMENT: Admittedly a quarrying firefighter would be ready & willing to earn more when recalled to duty at overtime rates except when a firefighter is running a highly viable quarry, he can choose not to be subject to emergency recall. High demand quarries also affect normal roster attendances.

XI) S3 Objects OH&S

The objects of this Act are as follows: (a) to secure and promote the health, safety and welfare of people at work, (b) to protect people at a place of work against risks to health or safety arising out of the activities of persons at work, (c) to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs, PART B CONTENTIONS cont

10 of 45 CHN SUBMISSION (d) to provide for consultation and cooperation between employers and employees in achieving the objects of this Act, (e) to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled, (f) to develop and promote community awareness of occupational health and safety issues, (g) to provide a legislative framework that allows for progressively higher standards of occupational health and safety to take account of changes in technology and work practices, (h) to protect people (whether or not at a place of work) against risks to health and safety arising from the use of plant that affects public safety. S6 When employees and selfemployed persons at work OH&S For the purposes of this Act: (a) an employee is at work throughout the time when the employee is at his or her place of work, but not otherwise, and (b) a selfemployed person is at work throughout such time as the person devotes to work as a selfemployed person. S7 Risks arising from activities at work OH&S For the purposes of this Act, risks arising out of the activities of persons at work include risks attributable to: (a) the manner of conducting an undertaking, or (b) the plant or substances used for the purposes of an undertaking, or (c) the condition of premises (or any part of premises) used for the purposes of an undertaking. S8 Duties of employers OH&S (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,

11 of 45 CHN SUBMISSION PART B CONTENTIONS cont (b)ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. COMMENT: Quarrying does not permit a safe system of work when full-time operational firefighters working shift work are tired and not at peak operational performance because of the extra hours of work (quarry) commitment. There is no maxim of work hours. The system of work permitted by alleged Statute permits quarrying. S8 OH&S (2) Others at workplace OH&S An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. COMMENT: Directly related to FB Act in protection and prevention of others in workplace, the general public: S6 FB Act Duty to deal with fires and hazardous material incidents S7 FB Act General authority to protect persons and property The Fire Brigades has a duty and power functions to ensure that persons (other than firefighters) are safe from the perils of emergency incidents. The core functions of the Fire Brigades Act are being compromised through quarrying. S9 Duties of selfemployed persons OH&S A selfemployed person must ensure that people (other than the employees of the person) are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work. COMMENT: The self-employed quarryers are understandably also responsible to ensue that their activities do not give rise to injuries. If

12 of 45 CHN SUBMISSION PART B CONTENTIONS cont operating without a maxim of hours there can be no assurance of health and safety. It is also possible for these individuals to rely upon the Fire Brigades to shield their activities when operating within the boundary of fire stations. Eg when mixing chemicals for a pest removal (insects) business at a fire station

OH&S COMMENT: It can be demonstrated that the above Objects (S3);

purposes (S6) & (S7); Duties of employers - NSW FB (S8) - employee firefighters (8)(1)) other at workplace the public (8)(2) and Duties of self employed persons quarryers (9), are compatible with duties functions of the Fire Brigades Act and Regulations I therefore submit that the statutory obligations under the Fire Brigades Act 1989 and its Regulation 1997 are reinforced under the mandatory obligations of the Occupational Health & Safety Act 2000. S118 Act to bind Crown OH&S This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities. _____________

PART C THE ARGUMENT OF REASONABLE WORKING HOURS

1. Is there a need for the establishment of reasonable working

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hours given the permitted criteria for the NSW Fire Brigades quarrying, which gives rise to extensive hours of work beyond the maxim of the primary employer? 2. THE ACTU & LABOR MOVEMENT:
2a. The ACTU as the main applicant to these proceedings assumed to be the voice for all unions including the NSW Fire Brigades Employees Union. Admittedly the ACTUs aspirations may be genuine. However its grass roots affiliation with an almost total union membership of NSW permanent firefighters as well as, it would seem, the National participation by firefighters, would be highly compromising to its case it brings before this Commission. Clearly the process of secondary employment, known as quarrying, is highly evolved within the NSW Fire Brigades it is difficult to believe that full-time permanent firefighters are permitted to work juxtapose in full-time secondary employment in full knowledge of its Union, the Crown Employer Fire Brigades and Ministry for Emergency Services and other Crown Instruments. 2b. The meaning of full-time employment is linked to the maxim of working hours recognised as the 38-hour week. The 38-hour week maxim has clearly been eroded, as proponents on either side of the debate (better and/or worse) for reasonable working hours would agree. The NSW Fire Brigades permanent members retain all entitlements to a 38-hour week claiming penalty rates in excess of the maxim whilst at the same time, in contemporaneous fashion, pursuing secondary employment in contradiction to that maxim and coupled penalties that the primary employer provides. 2c. The scenario of unreasonableness is submitted by the ACTU, which has affiliations with the NSW Labor Council vis a vis New South Wales Carr Labor Government Ministry in question, the NSW Emergency Services Ministry which in turn derives policy development controlling the inner sector Government Department NSW Fire Brigades. PART C THE ARGUMENT OF REASONABLE WORKING HOURS cont 2d. An email submission dated 21 April to Labor Council, ACTU, NSW MPs including The Premier Bob Carr and Emergency Services Minister Debus. The email was in response to the recent changes to NSW Workers Compensation laws,

14 of 45 CHN SUBMISSION with respect of implied admissions of unsafe work practice and what I believe must be exacerbated by secondary employment in the case of the NSW Fire Brigades I made special reference to the Muirhead report prepared for Emergency Services Minister Mr Bob Debus titled Workers Compensation and Rehabilitation in the NSW Fire Brigades Nov 1995. There has been some feed back by some State MPs in the form of acknowledgements.

See email form MLA B Carr & Email sent to MLAs Annexure B&C
2e. Despite ongoing communication to the ACTU via a document given in person through the LHMU and also by email to ohs@actu.asn.au there has been no feedback from the ACTU or the LHMU.

See encl email sent to ohs@actu.asn.au - Annexure D

2f. The Union doctrine of one man one job was set aside by the NSW Fire Brigades Employees Union and by the ACTU. The ACTU seeks now to unwind the process it condoned. It knows there is a compromise in its affiliate structure so it sees perhaps nothing wrong in pursuing (the instruction given to its legal counsel) of penalty emolument of days off in lieu, as example, for those working extra hours with a primary employer involuntarily, so that then those very workers rush off to meet their voluntary secondary work (quarry) commitments. Whilst this is pursued the Labor Government an ACTU affiliate, endorses the prohibition of payment for work by volunteer workers who are unable to obtain a primary employment. 2g. Probably no one perceives the Legislative anomaly of two groups of workers working side-by-side performing at times the same work, one group is forbidden to be paid and prevented by statute to obtain employment because the other group is permitted to be paid in two employments. Does the ACTU now require that the second group be given further consideration of days off in lieu.

PART C THE ARGUMENT OF REASONABLE WORKING HOURS cont

3. THE NSW FIRE BRIGADES

3a. The Fire Brigades Secondary Employment Policy January 2001 expresses

15 of 45 CHN SUBMISSION moot policy on conflicts of public interest and safety with respect of permanent firefighters. It is moot because the policy document states for employees under the Public Sector Management Act 1988 Section 66 (2) Fire Brigades Act 1989 exempts firefighters from the PSM Act. Regardless of the intent of such a document for firefighters not to compromise their primary employment there is no significant monitoring of secondary employment it is acceptable practice to collect all entitlements from the primary employer NSW Fire Brigades incurred in working in excess of the maxim before contemporaneous continuance onto a secondary employer. Where is the logic of incurring such an interim penalty rate from the primary employer?

See encl F B Secondary Employment Policy - Annexure E

3b. The Policy document in question stems from the NSW Government Personnel Handbook and the NSW Premiers Department Model Code of Conduct for NSW public sector agencies. The Code may have no effect on firefighters who serve the Crown not the Government S69 (2) Fire Brigades Act 1989 A member of a fire brigade is, when acting as such a member, to be considered to be employed by the Government of New South Wales in the service of the Crown. More importantly however S66 Staff of Department etc which provides: (1) Such staff as may be necessary to enable the Commissioner to exercise the Commissioner's functions are to be employed under Part 2 of the Public Sector Management Act 1988. (2) Subsection (1) does not apply to the members of permanent fire brigades. 3c. The fact is the NSW Fire Brigades has allowed advertising of its members business interests on the Brigades Intranet site Groupwise. The activity has been relocated to an alternative site FIRIES BUSINESS NETWORK: www.network54.com/hide/forum/127499.

See download from Firies Business Network Annexure A

PART C THE ARGUMENT OF REASONABLE WORKING HOURS cont 3d. Regardless of the ethics or seemingly corrupt nature of how the process of secondary employment prevails, the process is open and seemingly sustainable.

16 of 45 CHN SUBMISSION Quarrying is both internally and externally networked and extensively so. However, the process is dangerously unsustainable because of the personal affect it has on participating individuals and the Public. The unreasonableness and/or coerciveness of extended working hours is simply not perceived as an issue, for the NSW Fire Brigades permanent members who voluntarily carry out their quarrying with impunity.

See encl quarry docs Annexure F 4. THE NSW EMERGENCY SERVICES MINISTRY:
4a. The Brian Muirhead report prepared for Emergency Services Minister Mr Bob Debus titled Workers Compensation and Rehabilitation in the NSW Fire Brigades Nov 1995 NB page 10 on Other Employment states inter alia: A matter peculiar to firefighters is that they are permitted by Regulation to engage in another occupation. Reference is made to the By Laws (By Law 80) made under the Fire Brigades Act 1909 and current 1989 Act, Regulation Cl 32. 4b. On page 11 Mr Muirhead states The problem so far as workers compensation is concerned is that there is always a suspicion that an injury claimed could have occurred in their other occupation On page 6 the statistics of injury location has Mr Muirhead stating that the majority of injuries claimed do not occur while actually fighting fires but occur at work around the fire station, training college etc. Mr Muirhead further states, (pge 6) This to me is quite surprising, and while some of the training courses would have some inherent dangers, it would seem that more care or some review of what takes place away from the actual firefighting could be looked at by management.

See encl Muirhead report Annexure G

4c. News advertisement The Daily Telegraph Tues, August 15, 2000 by Emergency Services Minister Debus admitting to the existence of firefighters working on a second job. Mr Debus was airing his concerns to the public about the Fire Brigades Employees Unions demands in the death and disability (D&D) PART C THE ARGUMENT OF REASONABLE WORKING HOURS cont dispute that members are insisting on 24 hr cover to be paid by the NSW Fire Brigades fire levee. The Minister is concerned about the flow on affect by Public

17 of 45 CHN SUBMISSION Sector Employees.

See News advertisement The Daily Telegraph Annexure H

4d. The Ministry alludes to detrimental OH&S effects of secondary employment clearly impacting on the primary Crown employer and thereby exacerbating the impact on the cost of D&D 24 hour cover.

5. NSW FIRE BRIGADES EMPLOYEES UNION:

5a. NSW Fire Brigades Employees Union clearly gives endorsement to the proposed 24 hr cover as per the above Newspaper advertisement. The Union and its members require Death & Disability (D&D) cover similar (I would suggest greater) to that implemented under the now closed off provisions of the Superannuation Act 1916. The open admission by a Union that a Government Department should fully subsidise D&D for 24 hrs for all consequential activities including recreational cannot preclude what is essentially cover for primary and secondary employment. 5b. Recognising that both firefighters and Government would be required to enter into proportioned contributions for at least on-duty D&D of permanent firefighters it remains that the NSW Fire Brigades Employees Union has been the lead influence in promoting the pecuniary benefits of secondary employment as part of its industrial brief under its Articles Of Association. 5c. The FBEUs doctrine of one man one job has been abandoned long ago by this Union and I think it is about time that the ACTU and labor political movement admitted the same intent. 5d. The D&D dispute precludes the retained (part-time) firefighters. Instead the FBEU is insisting that all permanent firefighters be covered for 24 hrs at the

18 of 45 CHN SUBMISSION PART C THE ARGUMENT OF REASONABLE WORKING HOURS cont expense of the Public through the fire levee under the Fire Brigades Act 1989. Those members of the Public may well be retained members.

6. THE OFFICE OF THE NSW OMBUDSMAN:

6a. My complaint on secondary employment to the NSW Ombudsman in reference document: C/97/1952, C/97/2079, C/97/2080 dated 27 Oct 1997. The observations by the Ombudsman in lieu of the prohibition of investigation Clause 12 of Schedule 1 Ombudsman Act 1974, with respect to the stated Muirhead report the Complaints Officer for the Ombudsman states that the Muirhead report is clearly concerned with employment related matters 6b. The Ombudsmans Complaints Officers observations as follows: * The By Laws and Regulations made under the Fire Brigades Act clearly permit officers to undertake activities outside work, so long as those activities are not incompatible with their fire fighting duties. Mr Muirhead acknowledges that the policy of the Fire Brigades management in the past has been to permit secondary employment. Please note that the role of the Ombudsman is to investigate complaints about administrative matters. Unless there is good reason, it would generally not be appropriate for the Ombudsman to substitute her own views for those of the Fire Brigades in policy matters, so long as that policy is lawful and reasonable in the circumstances, nor to challenge the findings of Mr Muirhead. * You quote a passage of Mr Muirheads Report in relation to the physical impairment of firefighters. This passage appeared under point 6 of this report, Age, General Fitness and Workers Compensation. These comments do not relate solely to the practice of secondary employment, but rather were part of his more general conclusions about the health and fitness of fire fighters as they get older.

PART C THE ARGUMENT OF REASONABLE WORKING HOURS cont

19 of 45 CHN SUBMISSION 6c. The Ombudsman Officers observations (and Mr Muirhead) that quarrying is permissible under statute so long as it is not incompatible with firefighting duties, is simply the state of denial that pervades all the parties involved. Clearly the Occupational Health & fitness of firefighters has a bearing on their ability to carry out their statutory duties and the juxtapose secondary employment is a critical influence. The Ombudsman supports Mr Muirheads allusion to the obvious lack of monitoring of firefighter OH&S and the statistics of Workers Compensation claims by firefighters injuries the majority of which occur non-fire fighting role at around the fire station, training college etc. 6d. If it is the intention by the instruments of NSW Labor Government that the practise of open ended unfettered employment hours, which is voluntary and mooted as reasonable, should continue unabated then the argument for limiting otherwise the hours of other workers (non FB) deemed unreasonable would seem illogical.

See attached Ombudsman response C/97/1952; C/97/2079; C/97/2080 Annexure I

________________

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PART D THE ECONOMIC INEQUITY FOR OTHER FIRE SERVICES THE PART-TIME FIREFIGHTING MEMBERS Fire Brigades Act 1989; THE VOLUNTEER RURAL FIRE SERVICE (RFS) FIREFIGHTING MEMBERS: Rural Fires Act 1997.
1. I think it relevant to also consider the other end of the work spectrum, those discrepancies and the equities of those members of our society, the Rural (RFS) volunteers, many of who are unemployed but give their time and efforts often at great personal and financial cost as well as the part-time retained NSW Fire Brigade members set against the activities of those quarrying full-time members of the NSW Fire Brigades.
2. The fact is brigades from the Rural Fire Service manned by unpaid volunteers respond jointly to incidents with paid members (part-time and/or full-time) of the NSW Fire Brigades. Recent media advertising promotes the efforts of volunteers as akin to the birth of Australia as a Nation in this the Centenary year 2001 3. Funding for both fire services under the Fire Brigades Act 1989 and the Rural Fires Act 1997 are provide for through levying of property insurance premiums as well as additional levying by the Local Government rates. These collections represent about 86% of the running costs for fire services within NSW (73% insurance levee + 13% LG). The State Government makes up the remainder, about 14%. However, the combined collections of GST and State Stamp Duty on property insurance premiums represent a greater amount than the said 86% collected under the auspices of the fire levee and Local Government rates.

PART D THE ECONOMIC INEQUITY FOR OTHER FIRE SERVICES THE

21 of 45 CHN SUBMISSION PART-TIME FIREFIGHTING MEMBERS Fire Brigades Act 1989; THE VOLUNTEER RURAL FIRE SERVICE (RFS) FIREFIGHTING MEMBERS: Rural Fires Act 1997. cont 4. What equities are provided to adjust for the difference of work equity given the similarity in duty function between the rural volunteers, part-time members and fulltime members of the NSW Fire Brigades? The process is regulated by Statute. 5. The Fire Brigades Act 1989 provides for the establishment of retained firefighters in what is known under Section 9 of that Act where The Minister may approve an association of persons as a volunteer fire brigade. The Minister also has the power to dissolve volunteer fire brigades under the S9 (2). 6. There is a similar establishment under the Rural Fires Act 1997 for volunteer fire stations. S 15 under that Act provides for the Formation of rural fire brigades S 15 (4) The Commissioner may form a rural fire brigade for a rural fire district if any local authority requested to form a rural fire brigade for that district refuses or fails to do so within the period prescribed by the regulations after being requested to do so by the Commissioner. 7. However these volunteer brigades known as bush fire stations established under the Rural Fires Act 1997 are manned by a volunteer labour unlike volunteer fire brigades under S9 Fire Brigades Act 1989 which are manned by paid part-time members. 8. There operates by virtue of the Parliament of NSW a misnomer of the definition of volunteer (fire brigade) under the Fire Brigades Act 1989 which provides its members paid employment unlike the Rural Fires Act 1997 (rural fire fighters) which does not: Rural Fires Act 1997 S8(3) In this Act: volunteer rural fire fighters means: (a) officers and other members of rural fire brigades, and (b) any person other than a member of a rural fire brigade who, without remuneration or reward, voluntarily and without obligation engages in fighting (or in PART D THE ECONOMIC INEQUITY FOR OTHER FIRE SERVICES THE PART-TIME FIREFIGHTING MEMBERS Fire Brigades Act 1989; THE

22 of 45 CHN SUBMISSION VOLUNTEER RURAL FIRE SERVICE (RFS) FIREFIGHTING MEMBERS: Rural Fires Act 1997. cont activities associated with fighting) a fire with the consent of or under the authority and supervision of an officer of a rural fire brigade. 9. However, the volunteer brigades under the Rural Fires Act 1997 have identifiable functions to those of the volunteer brigades under the Fire Brigades Act 1989. S 21 Rural Fires Act 1997- Functions of officers of rural fire brigades provides: S21 (1) An officer of a rural fire brigade or group of rural fire brigades has the functions conferred or imposed on the officer by or under this or any other Act. Note. Functions may be conferred under the Act by the Service Standards. (2) An officer of a rural fire brigade or group of rural fire brigades may exercise a function conferred or imposed on the officer: (a) at a fire, incident or other emergency in the rural fire district for which the brigade or group was formed, or (b) at a place outside that rural fire district: (i) with the approval of the Commissioner or of the fire control officer for the rural fire district in which the place is located, or (ii) in accordance with a bush fire management plan or in circumstances prescribed by the regulations, or (iii) within a fire districtwith the approval of an officer of New South Wales Fire Brigades. (3) An officer or member of a rural fire brigade or group of rural fire brigades is not, merely because of the authority conferred on the officer or member to exercise any functions under this Act, to be taken to be an employee of the State, a Minister of the State or a local authority.

PART D THE ECONOMIC INEQUITY FOR OTHER FIRE SERVICES THE PART-TIME FIREFIGHTING MEMBERS Fire Brigades Act 1989; THE VOLUNTEER RURAL FIRE SERVICE (RFS) FIREFIGHTING MEMBERS: Rural

23 of 45 CHN SUBMISSION Fires Act 1997. cont 10. If there exists similar if not identical functions between fire service organizations there requires Crown provisions for the protection for firefighters regardless of their work status thus: Workers Compensation (Bush Fire, Emergency And Rescue Services) Act 1987 No 83 - An Act to continue the special compensation scheme for bush fire fighters, emergency service workers and rescue association workers; and for other purposes; Fire Services Joint Standing Committee Act 1998 No 18 - An Act to establish a Fire Services Joint Standing Committee and to confer functions on the Committee; and for other purposes. [Assented to 3 June 1998] 11. There exists in the United States by virtue of the Advisory Legal Opinion from the Florida Attorney General to the Monroe County Attorney, see doc: http://legal1.firn.edu/ago.nsf/aae57c7b032875d1999852562210064249c?OpenDoc umen , inspired it appears, by a community gratitude for the valuable service that unpaid volunteers give and not by any industrial relations instrument. The legal advice gives an opinion on the establishment of a pension trust fund for volunteer firefighters. In this year of the Federation Centennial the community is asked to honour the efforts of volunteers around Australia who give their time, effort and resources to the community. This process is done by professional promotion by media advertising companies, which of course means real paying work no doubt at the behest of Government.

See attached Advisory Legal Opinion Annexure J

12. Where there is avoidance of paying PAYG tax and the employer compulsory employer superannuation contribution by the permanent firefighters quarry boss the volunteer firefighters become labour to be exploited by Government and perhaps unknowingly by other sections of the community in the protection of others livelihoods. PART D THE ECONOMIC INEQUITY FOR OTHER FIRE SERVICES THE PART-TIME FIREFIGHTING MEMBERS Fire Brigades Act 1989; THE VOLUNTEER RURAL FIRE SERVICE (RFS) FIREFIGHTING MEMBERS: Rural Fires Act 1997. cont

24 of 45 CHN SUBMISSION 13. There is no maxim of work hours for retained members of the NSW Fire Brigades. Of interest the requirement for the Brigades (NSW FB) part-time retained members to monitor their availability for call outs represents a minimum total hours of work as per Brigades Statement Of Duties - Retained Firefighters.

See attached duty statement AnnexureL

The required Attendance Policy is as follows: Policy currently dictates that the following minimum attendance ratios sustained:Fires Day Worker Shift Worker Drills 50% of all night and weekend calls 30% of all calls as per Regulation 85. The number of drills to be

Attended over a three (3) month period must not fall below 75% and must contain at least two (2) Principal Training Officers Drills. In calculation of attendance figures, account is taken of periods of approved absence, i.e., Annual Leave, Sick Leave, etc.

The above Fire Brigades attendance policy does not stipulate a maxim of working hours. 14. Apart from a reasonable compulsory maxim of work hours in their primary employment retained firefighters are subject to coercion in their employment as: (a) a compulsory attendance ratio policy (either secondary or only primary) that has no maxim of work hours amounting at times to be unreasonable and unsafe and; (b) unlike permanent firefighters who are permitted to make voluntary commitment to secondary employment with impunity and; (c) unlike permanent firefighters who have tenure of Fire Brigades employment conversely unlike; (d) retained members who are subject to instant statutory termination of their appointment under S9 (2) Fire Brigades Act 1989. 15. The D&D dispute conducted by the NSW FBEU precludes the retained firefighters even when both permanent firefighters and retained firefighters perform PART D THE ECONOMIC INEQUITY FOR OTHER FIRE SERVICES THE PART-TIME FIREFIGHTING MEMBERS Fire Brigades Act 1989; THE VOLUNTEER RURAL FIRE SERVICE (RFS) FIREFIGHTING MEMBERS: Rural Fires Act 1997. cont

25 of 45 CHN SUBMISSION under the same Act and Regulation. Permanent firefighters could obtain their own D&D coverage where the additional risk due to quarrying being a voluntary liability prevails, but the FBEU insists that the community subsidise coverage for their quarries. This is in stark contrast with the exclusion of D&D for retained members mandatory maxim attendance requirements of a primary employer and a mandatory minimum attendance (ratio policy) of their secondary employer Fire Brigades. 16. CORONERS INQUEST: a) The findings by Alan Railton at Newcastle Local Court 26 September 2001 into the death of Kevin Brown a retained firefighter (part-time firefighter) stationed at Swansea NSW. The Coroner noted in his findings the fact that Kevin Brown was on call 24 hrs a day. He was found to have Proscribed Content of Alcohol in his blood although other attending firefighting members did not consider that his behaviour was affected. b) Kevin Brown responded to an incident, a motor vehicle accident on Jan 9 2001 and regardless of his willingness to attend in excess of his human capacity to do so he did so acting in good faith. Kevin Brown responded from his residence as the most senior OIC available.

17. CONCLUSION with respect of the equity of volunteer and parttime establishment
a) There operates a Legislative misnomer of definitions of volunteer functioning under the Fire Brigades Act 1989 as volunteer fire brigades (manned by paid personnel) and volunteer rural fire fighters (manned by unpaid personnel) under Rural Fires Act 1997. b) There also exists the similarity of identifiable work functions provided in both the Fire Brigades Act 1989 and the Rural Fires Act 1997 which have certain inequities of work function attached to them ie the provision of paid and unpaid work. PART D THE ECONOMIC INEQUITY FOR OTHER FIRE SERVICES THE PART-TIME FIREFIGHTING MEMBERS Fire Brigades Act 1989; THE VOLUNTEER RURAL FIRE SERVICE (RFS) FIREFIGHTING MEMBERS: Rural Fires Act 1997. cont

26 of 45 CHN SUBMISSION c) Regardless of the inequities of work function under these Acts there are provided in other Crown Acts equities of liabilities of protection especially with respect of Workers Compensation (Bush Fire, Emergency And Rescue Services) Act 1987. There are of course Crown liabilities and equities under the OH&S Act 2000.

d) However, State Legislation which prescribes the establishment of voluntary unpaid work and then conversely lends weight for the interpretation of State Legislation (FB Act & Regs) which condones secondary employment for NSW Firefighters, an activity which would inevitably displace those unpaid volunteers looking for viable work the admission that Parliamentary Statute can provide the exclusion of viable employment of one section of society in favor of another performing identical work, is constitutional unsound law. RE: PART C6 - Ombudsman e) For the volunteer firefighters of Monroe County, Florida, United States, there is a realistic effort via the establishment of a pension trust fund by the community of that County to give some work equity. The Australian example is to patronize volunteers and exploit them further in providing paid work for those involved in expensive media advertising conducted on behalf of the National Centenary the pride of nation is corrupted. f) Where is the justice, which excludes retained firefighters of equitable D&D in favor of providing D&D to permanent firefighters secondary employment? The cost of running fire services is levied against the community some of who make up the ranks of rural volunteers and the retained in that community and who are seeking a primary employer. See News advertisement Daily Telegraph Ann H

PART D THE ECONOMIC INEQUITY FOR OTHER FIRE SERVICES THE PART-TIME FIREFIGHTING MEMBERS Fire Brigades Act 1989; THE VOLUNTEER RURAL FIRE SERVICE (RFS) FIREFIGHTING MEMBERS: Rural Fires Act 1997. cont

27 of 45 CHN SUBMISSION g) The current D&D dispute by the Fire Brigades Union does not include the retained members such as Kevin Brown on 24 hr standby but is only is concerned with permanent members 24 hr cover for quarrying and recreation.

See encl quarry docs specifically Stephen Osmand 7638 5/3/01 expressed exclusion of retained from D&D dispute
h) It is my contention that Kevin Browns behaviour cannot be called into question but his response to duty was compromised by a complexity of personal & employer liability although it was Kevin Brown and his family that paid the ultimate cost of that liability with the lose of his life. Therefore the NSW Fire Brigades failed to provide an Occupationally safe work environment without adequate monitoring, having retained firefighter Kevin Brown (being a widespread practice) on 24 hr stand by. i) The systems of work that have no monitoring of the maximum of hours an individual works and further permits a 24 hr standby operational procedure is irresponsible and in the case of Kevin Brown, negligent. S8 Duties of employers OH&S Act provides: (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (d) ensuring that systems of work and the working environment of the employees are safe and without risks to health, _________________

PART E THE CONGRUENT DUTIES AND POWERS OF THE FIRE BRIGADES ACT AND THE OCCUPATIONAL HEALTH & SAFETY ACT- with respect of protecting and saving life

28 of 45 CHN SUBMISSION

Fire Brigades Act 1989

Duties and powers of the Fire Brigades Act identify easily with duties and powers of the OH&S Act. S6 Duty to deal with fires and hazardous material incidents FB Act [The duty for practicable measures of protection and saving life] [The duty for confining or ending and rendering safe hazardous material incidents] S7 S67 General authority to protect persons and property FB Act Efficiency, discipline and good conduct FB Act Powers at fires and hazardous material incidents [The general power to protect from injury and death] [The duty to monitor performance] Division 1 S11 S12 S13 S14 S15 S16 S17 S18 S19 S20 S21 S22 S27 S28 S29 S30 incidents Investigation of reported fires and hazardous material incidents General powers of officers at fires and hazardous material incidents Closure of streets and public places Use of water etc Taking possession etc of buildings and vessels during fires or hazardous Making walls and buildings safe Disconnection etc of gas and electricity General power to remove persons or obstacles Special powers Fires outside areas to which Act applies Power to clear fire breaks etc Authority to enter land and buildings Inspection etc Sections of FB Act Inspection etc of brigades Inspection of theatres etc Inspectiondangerous goods, lighting of fires Information may be requested from owner Brigades to proceed with speed to suspected fires or hazardous material

material incidents

Division 2

S20A Hazardous material incidents outside area to which Act applies

Division 4

PART E THE CONGRUENT DUTIES AND POWERS OF THE FIRE BRIGADES ACT AND THE OCCUPATIONAL HEALTH & SAFETY ACT- with respect of protecting and saving life cont

Occupational Health & Safety Act 2000

29 of 45 CHN SUBMISSION Duties and powers of the OH&S Act identify easily with duties and powers of the Fire Brigades Act. S3 Objects [general powers and duties of Fire Brigades] The objects of this Act are as follows: (a) to secure and promote the health, safety and welfare of people at work, (b) to protect people at a place of work against risks to health or safety arising out of the activities of persons at work, (c) to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs, (d) to provide for consultation and cooperation between employers and employees in achieving the objects of this Act, (e) to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled, (f) to develop and promote community awareness of occupational health and safety issues, (g) to provide a legislative framework that allows for progressively higher standards of occupational health and safety to take account of changes in technology and work practices, (h) to protect people (whether or not at a place of work) against risks to health and safety arising from the use of plant that affects public safety. S8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, PART E THE CONGRUENT DUTIES AND POWERS OF THE FIRE BRIGADES ACT AND THE OCCUPATIONAL HEALTH & SAFETY ACT- with respect of protecting and saving life cont OH&S

30 of 45 CHN SUBMISSION (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

Division 2 Powers of inspectors OH&S

49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 Inspector may request assistance Time for entry into premises Use of force on entry Notification of use of force on entry Compensation Entry to premises used for residential purposes Search warrant General powers available on entry Powers available on entry to dismantle, take and keep things Care to be taken Power of inspectors to obtain information, documents and evidence Power of inspector to demand name and address Attendance of inspector at coronial inquest Protection from incrimination Offence: compliance Offence of impersonating an inspector Division does not apply to mines Powers of entry for places of work Notice of entry Production of authority to enter premises

PART E THE CONGRUENT DUTIES AND POWERS OF THE FIRE BRIGADES ACT AND THE OCCUPATIONAL HEALTH & SAFETY ACT- with respect of protecting and saving life. cont OH&S

69 70 71 72 73 74 75

31 of 45 CHN SUBMISSION Power of employees' representative to accompany inspector Notice of taking or dismantling plant, substances or other things Powers supporting taking of things Receipt for things taken Forfeiture of things taken Return of things taken Access to things taken

Division 3 Entry and inspection powers of authorised employees' representatives OH&S

76 77 78 79 80 81 82 83 84 85 Definition Powers of entry of places of work Notice of entry Authority to enter premises Entry to premises used for residential purposes Powers available on entry Care to be taken Authorised representative may request assistance from inspector Offence of failing to comply with requirement of authorised representative Offence of impersonating an authorised representative --------------------

PART F - OTHER RELEVANT SECTIONS & CLAUSES FIRE BRIGADE ACT & REGULATION
Fire Brigades Act 1989

32 of 45 CHN SUBMISSION

Part 2
S6 (1)

Provision of fire brigades etc

Duty to deal with fires and hazardous material incidents It is the duty of the Commissioner to take all practicable measures for

preventing and extinguishing fires and protecting and saving life and property in case of fire in any fire district. (2) (a) (b) (c) S7 (1) It is the duty of the Commissioner to take all practicable measures: for protecting and saving life and property endangered by hazardous for confining or ending such an incident, and for rendering the site of such an incident safe. General authority to protect persons and property The Commissioner is authorised to take measures anywhere in the State for

material incidents, and

protecting persons from injury or death and property from damage, whether or not fire or a hazardous material incident is involved. (2) In the case of fire, it does not matter whether or not the persons are, or the property is, within a fire district. S9 (1) (a) and (b) the carrying out of that purpose is not the sole or principal occupation or means of livelihood of those persons or a majority of them (whether or not they receive any payment for their services as members of the association). (2) (3) The Minister may revoke such an approval at any time by notice in writing The trustees of any real or personal property of a volunteer fire brigade may given to the captain of the volunteer fire brigade or published in the Gazette. vest that property in the Crown, to be held by the Crown subject to the provisions of this Act but free from any other trust. PART F - OTHER RELEVANT SECTIONS & CLAUSES FIRE BRIGADE ACT & REGULATION cont Volunteer fire brigades The Minister may approve an association of persons as a volunteer fire the association is formed for the purpose of extinguishing fires and of taking

brigade if satisfied that: measures referred to in section 6 (2) in relation to hazardous material incidents,

Fire Brigades Act 1989 cont Part 6

Division 1

Administration
The Department

33 of 45 CHN SUBMISSION S65 (1) (2) Establishment of Department There is established by this Act a Department of the Government with the The Department is to be regarded as having been established under section

name of New South Wales Fire Brigades. 49 of the Constitution Act 1902, and nothing in this section affects the powers conferred by that section in relation to the Department. S66 (1) Staff of Department etc Such staff as may be necessary to enable the Commissioner to exercise the

Commissioners functions are to be employed under Part 2 of the Public Sector Management Act 1988. (2) (3) Subsection (1) does not apply to the members of permanent fire brigades. The Commissioner may arrange for the use of the services of any staff (by

secondment or otherwise) or facilities of a government department, an administrative office or a public or local authority. (4) For the purposes of this Act, a person whose services are made use of under this section is a member of the staff of the Department. Division 2 S69 (1) (2) Firefighters

Appointment etc of firefighters The Commissioner may appoint such persons as may be necessary to A member of a fire brigade is, when acting as such a member, to be

provide the members of fire brigades for the purposes of this Act. considered to be employed by the Government of New South Wales in the service of the Crown.

PART F - OTHER RELEVANT SECTIONS & CLAUSES FIRE BRIGADE ACT & REGULATION cont

Fire Brigades Act 1989 Cont

Division 3 S75 (1) The Advisory Council Constitution of Council There is constituted by this Act the New South Wales Fire Brigades Advisory

34 of 45 CHN SUBMISSION Council. (2) The Council is to consist of 4 members, being: (a) the Commissioner, who is to be the Chairperson of the Council, (b) (Repealed) (c) a person appointed by the Minister to represent insurance companies in New South Wales, being a person selected by the Minister from a panel of 3 persons nominated by the Insurance Council of Australia Limited, (d) a person appointed by the Minister to represent local government in New South Wales, being a person selected by the Minister from a panel of 3 persons nominated jointly by the Local Government Association of New South Wales and the Shires Association of New South Wales, (e) (Repealed) (f) a person appointed by the Minister, being a person who in the Minister's opinion has expertise in the field of fire prevention and control. (3) (4) Schedule 2 has effect with respect to the members and procedure of the If a body fails to nominate a panel of persons for the purposes of an Council. appointment under subsection (2) (c) or (d) within a reasonable time after being requested to do so by the Minister, the Minister may appoint a person of the Minister's own choice. S76 (1) Functions of Council The function of the Council is to advise the Minister on any matter relating to

the development, coordination, administration and regulation throughout the State of fire brigade services provided under the authority of this Act. (2) (3) Any such advice may be given either at the request of the Minister or without The Council has such other functions as are conferred or imposed on it by or any such request. under this or any other Act. PART F - OTHER RELEVANT SECTIONS & CLAUSES FIRE BRIGADE ACT & REGULATION

Fire Brigades Act 1989 Cont

S77 (1) Committees of Council The Council may, with the approval of the Minister, establish committees to

assist it in connection with the exercise of its functions.

(2) (3)

35 of 45 CHN SUBMISSION It does not matter that any or all of the members of a committee are not The procedure for the calling of meetings of a committee and for the conduct

members of the Council. of business at those meetings is to be as determined by the Council or (subject to any determination of the Council) by the committee.

Fire Brigades (General) Regulation 1997

Part 3 Firefighters' duties C13 Contraventions of Part 3 A contravention of this Part does not give rise to an offence but may be the subject of disciplinary proceedings under Part 4. C15 Honesty and truthfulness

(1) A firefighter must act honestly and truthfully in the performance of the firefighter's duties. (2) In particular, a firefighter must not in the capacity of a firefighter: (a) wilfully or negligently make a false or misleading statement to a person, or (b) knowingly make a false or misleading statement in any official document, record or book, or (c) without good and sufficient cause, destroy or mutilate any official document, record or book, or alter or erase any entry in it, or (d) fail to account promptly for any money or property that comes into the firefighter's possession during the course of the firefighter's duties, or (e) otherwise be concerned, whether directly or indirectly, in corrupt conduct. C16 Duty to obey orders and act fairly and responsibly A firefighter must not:

PART F - OTHER RELEVANT SECTIONS & CLAUSES FIRE BRIGADE ACT & REGULATION cont

Fire Brigades (General) Regulation 1997 cont

(a) disobey any lawful order given by a person in authority over the firefighter, or (b) be disrespectful or insolent to a person in authority over the firefighter, or (c)abuse the firefighter's authority by acting oppressively towards a

36 of 45 CHN SUBMISSION subordinate, or (d) without good and sufficient reason, be absent from duty or be late for any parade, drill or other required attendance, or (e) by negligence or otherwise, allow any loss, damage or injury to occur to any person or property, or (f) fail to report any matter, or make an entry in a book or document, that it is the firefighter's duty to report or make.

37 of 45 CHN SUBMISSION

PART G - THE ETHOS OF A MODERN FIRE SERVICE the conflict between quarrying and serving the Charter to save life and property.
A) THE HELPFUL HERESY
1. The type of work that a modern fire service should be involved in can be best demonstrated by Vincent Brannigan in his article in FIRE Australia November 1994 issue. The article is titled Some helpful heresy. This article elucidates well on two pages what firefighting is really about, fire-prevention. The present system of front line firefighting is basically an outmoded form of work meant as a last resort.

See attached article Some helpful heresy by Vincent Brannigan Annexure K

2. The article recognises that the activity of fire suppression is such an exciting experience that members of the community like doing it for free, eg Rural Fire Services. In essence that is true because there would appear to be more esteem in firefighting than say helping out at a nursing home. 3. The devising displans (disaster plans) for evacuation procedures prevention of fires and hazardous material incidents is highly cost effective and would promote a defensive attitude and save community resources. 4. The 1994 article submits that front line fire personnel should be more involved in all forms of prevention and fire protection engineering that such is a line function and not specifically a staff function. 5. Consider the compulsory fire levee implemented by the Fire Brigades Act 1989 and Rural Fires Act 1997 collected by insurance companies and Local Government from the community policyholders vis a vis rate payers. a) The profit motive for the Government through its Stamp Duty collections actually increases when the cost for funding the Fire Brigades increases. b) The NSW Fire Brigades Advisory Council accountable to the Minister for Emergency Services publishes no public policy document on strategies for fire PART G - THE ETHOS OF A MODERN FIRE SERVICE the conflict between quarrying and serving the Charter to save life and property cont

38 of 45 CHN SUBMISSION

A) cont
prevention. The four members of the Council are: Insurance Council of Australia appointee; Local Govt; Fire Commissioner; Minister appointee c) Fires and other such disasters are good for insurance and Government business, suppression of incidents is preferable to prevention because it maintains the status quo of waiting at the fire stations for the call outs. 6. Consider a homeowner who has constructed in full masonry and non-flammable materials and has internal furnishings, which are low Fire Resistant Level and located in a non-bush fire prone area should have cheaper insurance premium. This isnt the case and so rather an insured flammable building and its highly flammable contents becomes the arsonists incentive maintained by the NSW Parliament. 7. The helpful heresy is an insight into proper fire service prevention technology and administration. But what Mr Brannigan doesnt know is that the NSW Legislature promotes a cash cow effect, the more money the fire brigades demand in fire fighting equipment, the more money the NSW Government makes in Stamp Duty and GST. Although there is a limited exponential effect the fact remains that it is not in the interest of Government or the Insurance Industry to have an efficient and fiscally responsible fire services. 8. This has to be Government at its worse. The numerous outcomes of State Coroner fire services inquiries have also been equally disappointing and lacking. These inquiries do not get to the heart of the issues and only serve to condone the continuous misrepresentations by the fire services.

PART G - THE ETHOS OF A MODERN FIRE SERVICE the conflict between quarrying and serving the Charter to save life and property cont.

39 of 45 CHN SUBMISSION

B) QUARRYING - THE VOLUNTARY ETHOS OF THE PRIMARY EMPLOYER the voluntary secondary work ethos of firefighters is also the ethos of the primary employer.
1. Quarrying has the blessing of the Commissioner of the NSW Fire Brigades. The Fire Brigades have permitted quarry adds on their internal net, the GroupWise intranet. Recently there has been an initiative to remove these adds off the Brigades intranet and onto the world wide web, internet www.network54.com/hide/forum/127499 . 2. Quarrying comes about because of the lucrative shift arrangements the 10/14 that began in 1975. There are also other shift arrangements such as the back to back 12 on 12 off which apply in regional centres of the State of NSW. Basically a permanent firefighter begins duty at a fire station for two day shifts of 10 hours duration and then resumes the following two nights being 14 hours duration. In effect 4 days on 4 days off. 3. Basically the permanent members of the NSW Fire Brigades are employed parttime at full-time rates of pay. The duties of firefighters are generally limited to suppression stand by. 4. Many quarry merchants operate their businesses from fire stations whilst on shift. They are able to perform this alternate work whilst on shift because of the long periods on stand by. 5. It has become the norm for a person to build a career with the intention of firstly becoming qualified in some trade or profession and by the time that person has or is nearing completion of their trade or profession hopefully they are appointed as a firefighter

PART G - THE ETHOS OF A MODERN FIRE SERVICE the conflict between quarrying and serving the Charter to save life and property cont

B) cont

40 of 45 CHN SUBMISSION 6. The prospect of trades persons or others with professions including Police Officers, Accountants, etc, of being employed by the Fire Brigades, has become the norm. It is so acceptable that the primary employer is not necessarily the NSW Fire Brigades. So the Fire Brigades becomes in effect the quarry. 7. The lucrative prospect of having two full-time careers in effect two primary employers is now an acceptable practice.

C) THE PUBLIC INTEREST AFFECTS OF QUARRYING the betrayal of the public trust
1. There are many firefighters who have genuinely sought primary employment with the NSW Fire Brigades with a more genuine reason in mind, serving the public interest and wanting to continually practice their firefighting skills. However there is a temptation to quarry in the case of these firefighters who may feel a little left out the need versus greed scenario. 2. Those firefighters and officers who are heavily committed to their respective quarries relate firefighting employment, which may not be the Primary employer, as a two-day a week job. These individuals hold the public in contempt and have betrayed the public trust. 3. It is difficult for those who consider the Primary and only employment with the NSW Fire Brigades to be dispassionate about the effects of quarrying. Whilst those who direct their mental and physical energies to their Charter, others without due care or diligence prefer to takes full advantage of stand by times. At times Officers In Charge and firefighters alike are fully committed to their quarry and less committed to a stand-by-job (my interpretation) which leaves equipment under serviced and knowledge of the community hazards wanting. There are 4 platoons of personnel attached to fire stations (24 hr manning) and so the work eventually gets done by someone.

PART G - THE ETHOS OF A MODERN FIRE SERVICE the conflict between quarrying and serving the Charter to save life and property cont.

C) cont

41 of 45 CHN SUBMISSION 4. It is difficult for those who consider protecting their local community such as Rural Fire Service volunteers, some who are unemployed, to be dispassionate about the NSW Fire Brigades members having two jobs. 5. Trade skills like plumbing can often be traded for preferential treatment for overtime. Senior Officer wanting plumbing work done can bribe a fire fighter to do plumbing work in exchange for preferential listing on the recall (OT) roster. 6. Firefighting can at times be hazardous which requires fitness of mind and body. The arsonist can strike at any time during the night. A fire fighter weary from quarrying is a risk to the community, to himself and colleagues. Yet despite the obvious risks and the knowledge of it being so the Government permits this ethos to continue unabated. 7. In Nov 1995 the Minister for Emergency Services, Mr Debus, commissioned a report from Brian Muirhead titled Workers Compensation and Rehabilitation in the NSW Fire Brigades. On page 11 of that report excerpt: The problem so far as workers compensation is concerned is that there is always a suspicion that an injury claimed could have occurred in their other occupation, and this is particularly so when an injury is claimed during the first part of their shift with the Fire Brigades and such injury is not witnessed. While I am not suggesting that this is the general case, the statistics again show that the number of claims made by firefighters in the first period of their shift which are not witnessed, are far in excess of claims made during any other part of their shift. This statement alludes to the obvious, that firefighters are utilising the Fire Brigades Workers Compensation Insurance when injured at their quarries. 9. Quarrying is a networking ethos that promotes unlawful activities such as nonpayment of Commonwealth taxes and Compulsory Employer Superannuation Contribution as well as NSW Workers Compensation Insurance. It is black economy and corrupt behaviour pure and simple and certainly against the Public Interest. PART G - THE ETHOS OF A MODERN FIRE SERVICE the conflict between quarrying and serving the Charter to save life and property.

C) cont
10. It denies the opportunity for gainful employment by those in need and it is

42 of 45 CHN SUBMISSION disgraceful that the Government and the Union movement should promote such a practice. 11. Quarrying is unsafe and breaches NSW Crown Acts including essentially the Fire Brigades Act 1989 and Occupational Health and Safety Act 2000 (prior 1983).

D) CONCLUSIONS ON QUARRYING
1. The duty functions to protect life and the power to give effect to the carrying out of such functions by primary instruments of Government exist under the one roof being the Parliament of NSW. 2. The primary employer NSW Fire Brigades requires the concerted efforts of dedicated primary employees. Quarrying compromises this process. 3. The OH&S Act and the Fire Brigades Act and Regulation give effect to the protection and saving of life using sections which are both consistent and congruent in function and power. 4. The lack of a maxim of total work hours is a serious conflict to the safe and regulated duty functions under the OH&S Act and FB Act and Regulations. This conflict of duties is a direct result of the activity of quarrying, a voluntary and unregulated secondary work ethic which is permitted by the instruments of Government and the Parliament. 5. The Objectives and core Duties of both the Fire Brigades Act and Occupational Health and Safety Act are compromised through quarrying. There exists conflict in the duty functions and power of the NSW Fire Brigades to perform adequately under NSW Statute provided because of the extensive adverse preoccupation of its

PART G - THE ETHOS OF A MODERN FIRE SERVICE the conflict between quarrying and serving the Charter to save life and property cont

D) CONCLUSIONS ON QUARRYING cont

workforce. The instruments of Government promotes fiscally irresponsible

43 of 45 CHN SUBMISSION expenditure at the expense of the Community and the helpful heresy as promoted in the article by Vincent Brannigan would instead promote service efficiency, discipline of science and the utilisation of manpower. 6. It is neither fair nor reasonable or otherwise safe practise to have a totally openended secondary work ethic that could endanger the offending individual and or the public. Vigilance is the mainstay of any emergency management system and to leave to chance any possible danger to employees and the Public is irresponsible and negligent. 7. To be vigilant is to take reasonable steps to protect and prevent lose of life prescribed by the Parliament. It is not reasonable to ignore or purport that quarrying would have nil affect/effect on the performance of functions and duties and implementation of the power prescribed under the Fire Brigades Act 1989 (Regs 1997) and the Occupational Health & Safety Act 2000. 8. The Fire Brigades and Governments policy of quarrying is unable to be controlled at the present tempo of making it less obvious by taking it off the intranet and putting instead on the Internet - FIRIES BUSINESS NETWORK: www.network54.com/hide/forum/127499. Because the fact is quarrying exists in all its glory without the real interference by anyone including the NSW Parliament. RECOMMENDATION: I submit to this Court that quarrying be made illegal for the reasons put.

PROFILE OF AUTHOR
I was employed for approximately 14.5 years in the NSW Fire Brigades and a prior a member of State Emergency Services. Background in metal trades fasteners

44 of 45 CHN SUBMISSION manufacturing amongst a plethora of union memberships. A current member of the NSW Rural Fire Service Catherine Hill Bay Brigade. I have maintained my belief in The Heresy and I have paid a personal cost for that belief. TERTIARY EDUCATION: TAFE being related to fire engineering studies Certificate in Fire Engineering Dec 1990; Statement of Attainment in Firefighting Station Management Dec. 1990; Statement of Attainment in Building Code of Australia Dec. 1995; Associate Diploma in Applied Science (Building) Jul. 1996; Certificate in Computer Applications for the Office Jul. 1996; Statement of Attainment in Computer, Databases and Spreadsheets Jul.1997; Tertiary Preparation Course: Calculus; Statistics A; Statistics B Jan. 1997. OTHER RELATED QUALIFICATIONS 3B drivers licence; OH&S Workplace Committees course; Commonwealth Public Sector Recruitment Test; END

SIGNED: Charles Henry Norville

45 of 45 CHN SUBMISSION

ATTACHMENTS
A INTERNET WEB SITE FOR QUARRY MERCHANTS download from Firies
Business Network www.network54.com/hide/forum/127499

B EMAIL SENT TO NSW MLAs AND STATE LABOUR COUNCIL REGARDING

CHANGES IN WORKERS COMPENSATION LAWS

C EMAIL RESPONSE FROM NSW PREMIER CARR RE: EMAIL SENT TO NSW
MLAs AND STATE LABOUR COUNCIL

D EMAILS TO ACTU ohs@actu.asn.au as well as media@actu.asn.au E NSW FIRE BRIGADES SECONDARY EMPLOYMENT POLICY - 7 PAGES
OF PSM ACT POLICY; 2 PAGES OF IN-ORDERS; 1 PAGE OF STANDING ORDERS

F QUARRY DOCUMENTS DOWNLOADED FROM NSW FIRE BRIGADES

INTRANET GROUPWISE

G THE MUIRHEAD REPORT COMMISSIONED BY THE DEBUS EMERGENCY

SERVICES MINISTRY

H NEWSPAPER ADVERTISEMENT TELEGRAPH 15/08/00 BY EMERGENCY

SERVICES MINISTER DEBUS

I OMBUDSMAN RESPONSE C/97/1952; C/97/2079; C/97/2080 WITH SPECIAL

REFERENCE TO MUIRHEAD AND SECONDARY EMPLOYMENT

J ADVISORY LEGAL OPINION FLORIDA (USA) ATTORNEY GENERAL K SOME USEFUL HERESY BY VINCENT BRANNIGAN A PROFESSOR OF
LAW AND ATTORNEY DISTRICT OF COLUMBIA BARS

L DUTY STATEMENT FROM NSW FIRE BRIGADES CONCERNING

SWANSEA PART-TIME RETAINED POSITION