DISPUTE RE SETTLEMENT AGREEMENTS REGARDING COUNTRY RELIEVING ALLOWANCE

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES The United Professional Firefighters Union of Western Australia

APPLICANT

-v-

Department of Fire and Emergency Services

RESPONDENT

CORAM Commissioner T Emmanuel

DATE TUESDAY 6 FEBRUARY 2024

FILE NO/S CR 12 OF 2023

CITATION NO. 2024 WAIRC 00056

Result Order issued

Representation

Applicant Mr J Carroll (of counsel)

Respondent Mr C Fogliani (of counsel)

Order

WHEREAS this matter was referred for hearing and determination under s 44 of the Industrial Relations Act 1979 (WA) on 6 December 2023;

AND WHEREAS on 14 December 2023 the Commission directed:

1.  That the applicant file outlines of evidence and documents (other than the agreed documents) on which it intends to rely by 4.00 pm, Thursday 25 January 2024;

2.  That the respondent file outlines of evidence and documents (other than the agreed documents) on which it intends to rely by 4.00 pm, Thursday 15 February 2024;

3.  That the applicant file written submissions and a list of authorities by 4.00 pm, Thursday 29 February 2024;

4.  That the respondent file written submissions and a list of authorities by 4.00 pm, Thursday 14 March 2024;

5. That the matter be listed for a two-day hearing on dates to be fixed;

6. That discovery be informal; and

7. That the parties have liberty to apply.

AND WHEREAS on 25 January 2024 the applicant filed outline of evidence for Mr Tom Nolan and an unindexed bundle of documents;

AND WHEREAS on 31 January 2024 the respondent made an application seeking the following orders:

1. The applicant file a substituted witness outline of Mr Tom Nolan which complies with paragraph 10 of Practice Note 9 of 2021 by identifying the substance of the evidence that Mr Nolan will give and not just the topics upon which he will give evidence, by a date to be fixed;

2. The applicant file a substituted bundle of documents upon which it intends to rely which contains an index of the documents in the bundle, by a date to be fixed;

3. Directions 2 to 4 of the directions made on 14 December 2023 be vacated and new programming directions be issued taking into account the time for the applicant to comply with any orders to file a substituted outline of evidence and substituted bundle of documents (Application);

AND WHEREAS on 2 February 2024 the Commission suspended the programming directions and directed the applicant to respond to the Application;

AND WHEREAS on 5 February 2024 the applicant filed a response to the Application. In effect the applicant says that its case is clearly set out in the Memorandum of Matters Referred, Mr Nolan’s outline of evidence is not deficient, the documents speak for themselves and the case is likely to turn on the statement of agreed facts and agreed documents, rather than on Mr Nolan’s evidence. The applicant says its documents are clearly marked and electronically bookmarked. After the respondent has filed its materials, the applicant will create a court book with an index to the documents;

AND WHEREAS the Commission has considered the Application, the applicant’s response to the Application, Mr Nolan’s outline of evidence and the documents filed by the applicant;

AND WHEREAS the Commission considers that Mr Nolan’s outline of evidence is deficient because it does not adequately identify the substance of Mr Nolan’s proposed evidence in relation to the matters set out at [2], [4], parts of [5], and [6], and that it would assist the Commission if the applicant’s documents were indexed. In the circumstances, for the expeditious and just hearing and determination of this matter, the Commission considers that the applicant should file a substituted outline of evidence for Mr Nolan that identifies the substance of the evidence that Mr Nolan will give (and not just the topics on which he will give evidence), and a substituted bundle of documents on which the applicant intends to rely which contains an index of the documents in the bundle;

NOW THEREFORE, I the undersigned, pursuant to the powers conferred on me under the Industrial Relations Act 1979 (WA), hereby order –

THAT by 4.00 pm on Wednesday 14 February 2024 the applicant file a substituted outline of evidence for Mr Nolan that identifies the substance of the evidence that Mr Nolan will give (and not just the topics on which he will give evidence); and

THAT by 4.00 pm on Wednesday 14 February 2024 the applicant file a substituted bundle of documents on which the applicant intends to rely which contains an index of the documents in the bundle.

THAT by 4.00 pm on Monday 19 February 2024 the parties confer and inform chambers of their views about the proposed timing of previous directions 2 to 4.

Commissioner T Emmanuel