nsw fire brigades corrupt secondary work ethic - lead doc airc pr072002 @ 6 & 140
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This is a submission made by Charles Henry Norville against the NSW Fire Brigades corrupt work ethic of secondary employment which failed oversight by the NSW Government and its watchdog bodies and the FBE UnionTRANSCRIPT
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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
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 – PRELIMINARY1. Your Honours, my submission concerns the long-standing secondary work ethicof 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
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1) NSW Fire Brigades (Crown Employer);
2) The relevant Minister for Emergency Services (Minister of the Crown);
3) The NSW Ombudsman’s 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 peoplethat 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) tax avoidance
ii) workers compensation fraud and other prohibitions;
iii) 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
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4. It is my main contention that as the Fire Brigades Act 1989 and its Regulation of1997 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&SAct) steps that are practicable (FB Act) to protect and prevent lose oflife prescribed by the Parliament. It is not reasonable to ignore orpurport that quarrying would have nil affect/effect on the performanceof functions and duties and implementation of the power prescribedunder the Fire Brigades Act 1989 (Regs 1997) and the OccupationalHealth & 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 assistedpermanent firefighting members via its Brigades intra net site ‘Groupwise’ tooperate their quarries.
2. That the NSW Fire Brigades have no strategy to control theexcessive hours worked by firefighters both permanent and retainedmembers.
3. The NSW Crown Instruments of the relevant Ministry, EmergencyServices and the Office of the Ombudsman and others condone the activitiesof quarrying. In doing so promotes:
a) The internal and external networking of quarrying wherethe hiring of firefighters undermines, inter alia, the efficiency, disciplineand good conduct of firefighters – S 67 FB Act;b) The unlawful contract and illegal avoidance to limit PAYGtaxation and compulsory employer superannuation contribution;c) The avoidance of Workers Compensation insurance bythe quarry employer and instead relying upon the Fire Brigades WCinsurance when injuries are sustained.
4. The NSW Fire Brigades Employees’ Union:a) Condones quarrying and is actively seeking extensive Death &Disability (D&D) retirement cover for permanent members whist theyare carrying out their quarrying;b) Inconsistently does not seek as a minimum, extensive D&D forretained members whilst they are carrying out their statutory duties onunlimited standby under the NSW Fire Brigades Act;c) Promotes a trend toward exclusive hiring of firefighters for underaward 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 alternategroup there exists a serious Constitutional anomaly, where those quarryingtake the jobs of those who are prescribed volunteers.
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PART B – CONTENTIONS cont
6. The activities of quarrying are essentially inconsistent with NSWStatutes 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 19897a. 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.
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 permanentmembers 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 thereis no automatic tenure to the permanent ranks of employment. Therefore inessence S10 has more relevance to those members with tenure ie thepermanent full-time firefighting members.
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PART B – CONTENTIONS cont
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 theuse of power in acting fairly and responsibly and taking the reasonable stepsto protect life and property. Sections 6 & 7 are the core functions of the FireBrigades Act to which requires that the power abilities are complemented bythe efficiency discipline and good conduct of its statutory instruments –instruments of the Crown (the people), are the permanent and part-timemembers 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 affectsthe 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
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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 isunder threat due to the wide spread phenomenon of quarrying which iscondoned by the Minister, the Commissioner and Government instrumentssuch as the Ombudsman, the illicit activity of quarrying cannot be seen as abone fide act adversely effecting the outcome of duty functions under theFire Brigades Act 1989 and Occupational Health & Safety Act 2000.
V) C14 Firefighters to acquire and maintain knowledge of legislation, ordersand 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 goodconduct of firefighters S67 and S78 with respect of the protection fromliability. It is neither responsible, fair, practicable, nor good faith to havepermanent members acting with duplicity in total work function by sharing anundefined maxim of work hours with quarrying by deviating from an essentialfocusing 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 quarryerstaking full advantage of an open-ended work agreement which could amountto loss, damage, injury or death.
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PART B – CONTENTIONS cont
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 stationsthat suffer from departures of organised management procedures. Honeststation commanders on their own do not have the Brigades support ormonitoring 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 authoriseduse of brigade property together with the use of the brigades intranet site andcomputers to advertise quarries – NB THIS PRACTISE HAS BEEN REDUCEDAND 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 rewardoffered members due to the highly flexible shift work and on duty standbyarrangements. By virtue of the condonation and insistence by the partiesinvolved in its promotion, that such ethos is allegedly consistent withstatutory provisions. I.e. the instruments of Government cannot limit theprocess that are involved in quarrying so they blindly support it.Quarrying promotes the networking of an internal FB labour that is highlyflexible, works below award, and can claim Workers Compensation benefitsfrom a flag of convenience employer NSW FB.
See email from MLA B Carr & Email sent to MLAs – Annexure B&C
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PART B – CONTENTIONS cont
IX) C24 Incompatible activities – FBA 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 can’t ensure protection of the public when theemployer NSW Fire Brigades and respective Ministry considers wrongly thatFB 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 normalwork roster of this activity can be affected requiring their proxy dutyattendances 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 toearn more when recalled to duty at overtime rates except when a firefighter isrunning a highly viable quarry, he can choose not to be subject to emergencyrecall.
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
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(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&SFor 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&SFor 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) EmployeesAn 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,
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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-timeoperational firefighters working shift work are tired and not at peakoperational performance because of the extra hours of work (quarry)commitment.There is no maxim of work hours. The system of work permitted by allegedStatute permits quarrying.S8 – OH&S
(2) Others at workplace – OH&SAn 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 othersin workplace, the general public:S6 FB Act – Duty to deal with fires and hazardous material incidentsS7 FB Act – General authority to protect persons and property
The Fire Brigades has a duty and power functions to ensure thatpersons (other than firefighters) are safe from the perils of emergencyincidents. The core functions of the Fire Brigades Act are beingcompromised 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 alsoresponsible to ensue that their activities do not give rise to injuries. If
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PART B – CONTENTIONS cont
operating without a maxim of hours there can be no assurance of health andsafety.
It is also possible for these individuals to rely upon the Fire Brigades toshield their activities when operating within the boundary of fire stations. Egwhen 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) - employeefirefighters (8)(1)) – other at workplace the public (8)(2) and Duties of selfemployed persons –quarryers (9), are compatible with duties functions of the Fire Brigades Actand RegulationsI therefore submit that the statutory obligations under the Fire Brigades Act1989 and its Regulation 1997 are reinforced under the mandatory obligationsof the Occupational Health & Safety Act 2000.
S118 Act to bind Crown – OH&SThis 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.
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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 themaxim of the primary employer?
2. THE ACTU & LABOR MOVEMENT:2a. The ACTU as the main applicant to these proceedings assumed to be thevoice for all unions including the NSW Fire Brigades Employees’ Union.Admittedly the ACTU’s 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 MPsincluding The Premier Bob Carr and Emergency Services Minister Debus. The
email was in response to the recent changes to NSW Workers Compensation laws,
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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 [email protected] there has been no
feedback from the ACTU or the LHMU.
See encl email sent to [email protected] - 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 BRIGADES3a. The Fire Brigades Secondary Employment Policy January 2001 expresses
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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 Premier’s 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 PublicSector Management Act 1988.
(2) Subsection (1) does not apply to the members of permanent firebrigades.
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.
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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 BobDebus 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’ Union’s 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
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Sector Employees.
See News advertisement The Daily Telegraph – Annexure H4d. 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 enterinto 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 FBEU’s 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
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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 Ombudsman’s Complaints Officer’s “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 Muirhead’s 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
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6c. The Ombudsman Officer’s 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 Muirhead’s 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 limitingotherwise the hours of other workers (non FB) deemed unreasonable wouldseem 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-TIMEFIREFIGHTING 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 workspectrum, those discrepancies and the equities of those membersof our society, the Rural (RFS) volunteers, many of who areunemployed but give their time and efforts often at great personaland financial cost as well as the part-time retained NSW FireBrigade members – set against the activities of those quarryingfull-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
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PART-TIME FIREFIGHTING MEMBERS Fire Brigades Act 1989; THEVOLUNTEER RURAL FIRE SERVICE (RFS) FIREFIGHTING MEMBERS: RuralFires 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 full-
time members of the NSW Fire Brigades? The process is regulated by Statute.
5. The Fire Brigades Act 1989 provides for the establishment of retainedfirefighters 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 firestations. 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 – THEPART-TIME FIREFIGHTING MEMBERS Fire Brigades Act 1989; THE
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VOLUNTEER RURAL FIRE SERVICE (RFS) FIREFIGHTING MEMBERS: RuralFires 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 haveidentifiable 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 district—with 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 – THEPART-TIME FIREFIGHTING MEMBERS Fire Brigades Act 1989; THEVOLUNTEER RURAL FIRE SERVICE (RFS) FIREFIGHTING MEMBERS: Rural
23 of 45CHN SUBMISSION
Fires Act 1997. cont
10. If there exists similar if not identical functions between fire serviceorganizations there requires Crown provisions for the protection for firefighters
regardless of their work status thus:
Workers Compensation (Bush Fire, Emergency And Rescue Services) Act1987 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 aFire 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’ fromthe 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 – THEPART-TIME FIREFIGHTING MEMBERS Fire Brigades Act 1989; THEVOLUNTEER RURAL FIRE SERVICE (RFS) FIREFIGHTING MEMBERS: RuralFires Act 1997. cont
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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 50% of all night and weekend calls
Shift Worker 30% of all calls
Drills 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 – THEPART-TIME FIREFIGHTING MEMBERS Fire Brigades Act 1989; THEVOLUNTEER RURAL FIRE SERVICE (RFS) FIREFIGHTING MEMBERS: RuralFires Act 1997. cont
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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 intothe 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 2001and 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 part-time establishmenta) 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 theFire 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 – THEPART-TIME FIREFIGHTING MEMBERS Fire Brigades Act 1989; THEVOLUNTEER RURAL FIRE SERVICE (RFS) FIREFIGHTING MEMBERS: RuralFires Act 1997. cont
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c) Regardless of the inequities of work function under these Acts there are providedin 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 arealistic 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 – THEPART-TIME FIREFIGHTING MEMBERS Fire Brigades Act 1989; THEVOLUNTEER RURAL FIRE SERVICE (RFS) FIREFIGHTING MEMBERS: RuralFires Act 1997. cont
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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 – 5/3/01expressed exclusion of retained from D&D dispute
h) It is my contention that Kevin Brown’s behaviour cannot be called into questionbut 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
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Fire Brigades Act 1989Duties and powers of the Fire Brigades Act identify easily with duties andpowers 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 General authority to protect persons and property – FB Act[The general power to protect from injury and death]
S67 Efficiency, discipline and good conduct – FB Act[The duty to monitor performance]
Division 1 Powers at fires and hazardous material incidentsS11 Brigades to proceed with speed to suspected fires or hazardous material
incidents
S12 Investigation of reported fires and hazardous material incidents
S13 General powers of officers at fires and hazardous material incidents
S14 Closure of streets and public places
S15 Use of water etc
S16 Taking possession etc of buildings and vessels during fires or hazardous
material incidents
S17 Making walls and buildings safe
S18 Disconnection etc of gas and electricity
S19 General power to remove persons or obstacles
Division 2 Special powersS20 Fires outside areas to which Act applies
S20A Hazardous material incidents outside area to which Act applies
S21 Power to clear fire breaks etc
S22 Authority to enter land and buildings
Division 4 Inspection etc – Sections of FB ActS27 Inspection etc of brigades
S28 Inspection of theatres etc
S29 Inspection—dangerous goods, lighting of fires
S30 Information may be requested from owner
PART E – THE CONGRUENT DUTIES AND POWERS OF THE FIRE BRIGADESACT AND THE OCCUPATIONAL HEALTH & SAFETY ACT- with respect ofprotecting and saving life cont
Occupational Health & Safety Act 2000
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Duties and powers of the OH&S Act identify easily with duties and powers ofthe 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 BRIGADESACT AND THE OCCUPATIONAL HEALTH & SAFETY ACT- with respect ofprotecting and saving lifecont OH&S
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(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&S49 Division does not apply to mines
50 Powers of entry for places of work
51 Notice of entry
52 Production of authority to enter premises
53 Time for entry into premises
54 Use of force on entry
55 Notification of use of force on entry
56 Compensation
57 Entry to premises used for residential purposes
58 Search warrant
59 General powers available on entry
60 Powers available on entry to dismantle, take and keep things
61 Care to be taken
62 Power of inspectors to obtain information, documents and evidence
63 Power of inspector to demand name and address
64 Attendance of inspector at coronial inquest
65 Protection from incrimination
66 Offence: compliance
67 Offence of impersonating an inspector
68 Inspector may request assistance
PART E – THE CONGRUENT DUTIES AND POWERS OF THE FIRE BRIGADESACT AND THE OCCUPATIONAL HEALTH & SAFETY ACT- with respect ofprotecting and saving life. cont – OH&S
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69 Power of employees' representative to accompany inspector
70 Notice of taking or dismantling plant, substances or other things
71 Powers supporting taking of things
72 Receipt for things taken
73 Forfeiture of things taken
74 Return of things taken
75 Access to things taken
Division 3 Entry and inspection powers of authorised employees'representatives – OH&S76 Definition
77 Powers of entry of places of work
78 Notice of entry
79 Authority to enter premises
80 Entry to premises used for residential purposes
81 Powers available on entry
82 Care to be taken
83 Authorised representative may request assistance from inspector
84 Offence of failing to comply with requirement of authorised representative
85 Offence of impersonating an authorised representative
--------------------
PART F - OTHER RELEVANT SECTIONS & CLAUSES FIRE
BRIGADE ACT & REGULATION
Fire Brigades Act 1989
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Part 2 Provision of fire brigades etcS6 Duty to deal with fires and hazardous material incidents(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(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.
S9 Volunteer fire brigades(1) The Minister may approve an association of persons as a volunteer fire
brigade if satisfied that:
(a) the association is formed for the purpose of extinguishing fires and of taking
measures referred to in section 6 (2) in relation to hazardous material incidents,
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) The Minister may revoke such an approval at any time by notice in writing
given to the captain of the volunteer fire brigade or published in the Gazette.
(3) The trustees of any real or personal property of a volunteer fire brigade may
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 ®ULATION cont
Fire Brigades Act 1989 contPart 6 AdministrationDivision 1 The Department
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S65 Establishment of Department(1) There is established by this Act a Department of the Government with the
name of “New South Wales Fire Brigades”.
(2) The Department is to be regarded as having been established under section
49 of the Constitution Act 1902, and nothing in this section affects the powers
conferred by that section in relation to the Department.
S66 Staff of Department etc(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.
(3) 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 FirefightersS69 Appointment etc of firefighters(1) The Commissioner may appoint such persons as may be necessary to
provide the members of fire brigades for the purposes of this Act.
(2) 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.
PART F - OTHER RELEVANT SECTIONS & CLAUSES FIRE BRIGADE ACT ®ULATION cont
Fire Brigades Act 1989 ContDivision 3 The Advisory CouncilS75 Constitution of Council(1) There is constituted by this Act the New South Wales Fire Brigades Advisory
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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) Schedule 2 has effect with respect to the members and procedure of the
Council.
(4) If a body fails to nominate a panel of persons for the purposes of an
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 Functions of Council(1) 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) Any such advice may be given either at the request of the Minister or without
any such request.
(3) The Council has such other functions as are conferred or imposed on it by or
under this or any other Act.
PART F - OTHER RELEVANT SECTIONS & CLAUSES FIRE BRIGADE ACT ®ULATION
Fire Brigades Act 1989 ContS77 Committees of Council(1) The Council may, with the approval of the Minister, establish committees to
assist it in connection with the exercise of its functions.
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(2) It does not matter that any or all of the members of a committee are not
members of the Council.
(3) The procedure for the calling of meetings of a committee and for the conduct
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 1997Part 3 Firefighters' dutiesC13 Contraventions of Part 3A 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 responsiblyA firefighter must not:
PART F - OTHER RELEVANT SECTIONS & CLAUSES FIRE BRIGADE ACT ®ULATION 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 45CHN 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.
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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 HERESY1. 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 inall 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 1989and 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 betweenquarrying and serving the Charter to save life and property cont
38 of 45CHN 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-flammablematerials 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 isn’t the case and so rather an insured flammable building and its highly
flammable contents becomes the arsonist’s 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 doesn’t 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 betweenquarrying and serving the Charter to save life and property cont.
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B) QUARRYING - THE VOLUNTARY ETHOS OF THE PRIMARYEMPLOYER – the voluntary secondary work ethos of firefighters isalso 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 part-
time 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 betweenquarrying and serving the Charter to save life and property contB) cont
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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 – thebetrayal 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 betweenquarrying and serving the Charter to save life and property cont.C) cont
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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 non-
payment 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 betweenquarrying 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
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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 outof 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 OccupationalHealth 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 betweenquarrying and serving the Charter to save life and property contD) CONCLUSIONS ON QUARRYING cont
workforce. The instruments of Government promotes fiscally irresponsible
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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 open-ended 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 lifeprescribed 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 Government’s policy of quarrying is unable to becontrolled 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 forthe 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
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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 studiesCertificate 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 QUALIFICATIONS3B drivers licence; OH&S Workplace Committees course; Commonwealth Public
Sector Recruitment Test;
END
SIGNED: Charles Henry Norville
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ATTACHMENTS
A – INTERNET WEB SITE FOR QUARRY MERCHANTS download from “FiriesBusiness Network” www.network54.com/hide/forum/127499
B – EMAIL SENT TO NSW MLAs AND STATE LABOUR COUNCIL REGARDINGCHANGES IN WORKERS COMPENSATION LAWS
C– EMAIL RESPONSE FROM NSW PREMIER CARR RE: EMAIL SENT TO NSWMLAs AND STATE LABOUR COUNCIL
D– EMAILS TO ACTU [email protected] as well as [email protected]
E – NSW FIRE BRIGADES SECONDARY EMPLOYMENT POLICY - 7 PAGESOF PSM ACT POLICY; 2 PAGES OF IN-ORDERS; 1 PAGE OF STANDINGORDERS
F – QUARRY DOCUMENTS DOWNLOADED FROM NSW FIRE BRIGADESINTRANET – GROUPWISE
G – THE MUIRHEAD REPORT COMMISSIONED BY THE DEBUS EMERGENCYSERVICES MINISTRY
H– NEWSPAPER ADVERTISEMENT TELEGRAPH 15/08/00 BY EMERGENCYSERVICES MINISTER DEBUS
I – OMBUDSMAN RESPONSE C/97/1952; C/97/2079; C/97/2080 WITH SPECIALREFERENCE TO MUIRHEAD AND SECONDARY EMPLOYMENT
J– ADVISORY LEGAL OPINION FLORIDA (USA) ATTORNEY GENERAL
K – SOME USEFUL HERESY BY VINCENT BRANNIGAN A PROFESSOR OFLAW AND ATTORNEY DISTRICT OF COLUMBIA BARS
L – DUTY STATEMENT FROM NSW FIRE BRIGADES CONCERNINGSWANSEA PART-TIME RETAINED POSITION