NSW Fire Brigades corrupt secondary work ethic - lead doc AIRC PR072002 @ 6 & 140

1 of 45CHN SUBMISSION

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: [email protected]

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


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


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.

_______________


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.


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.



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



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.



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



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,



(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,



(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



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.

_____________

PART C – THE ARGUMENT OF REASONABLE WORKING

HOURS

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


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,


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.


3. THE NSW FIRE BRIGADES3a. The Fire Brigades Secondary Employment Policy January 2001 expresses


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


3d. Regardless of the ethics or seemingly corrupt nature of how the process of

secondary employment prevails, the process is open and seemingly sustainable.


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)


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


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



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.”



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

________________


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


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


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


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


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



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.



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



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



(d) ensuring that systems of work and the working environment of the


_________________

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


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


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



(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


(c) ensuring that systems of work and the working environment of the


(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


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


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 &REGULATION cont

Fire Brigades Act 1989 contPart 6 AdministrationDivision 1 The Department


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.


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


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 &REGULATION

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.


(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:


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


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.


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


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.


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


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


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


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


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


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


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

Documents

NSW Fire Brigades corrupt secondary work ethic - lead doc AIRC PR072002 @ 6 & 140