Two cases of importance for emergency workers and emergency response generally have begun in Australain courts this week.

In New South Wales, ambulance paramedics are seeking permission to establish their own union and to break away from the trouble plagued Health Services Union (HSU) (see “Paramedics to make bid for new union reps”, 9 News Online 4 March 2013; “HSU’s bid to block new paramedics union”, ABC News Online, 4 March 2013).

I’m not an industrial lawyer but I understand the key issue will centre around the section 218 of the Industrial Relations Act 1996 (NSW) which list the criteria that must be met before an organisation can be listed as an industrial organisation and then represent its members in industrial issues.  There may be debate about whether the proposed new union, the Australian Paramedics Association has sufficient resources to be “capable of representing its members in connection with industrial matters” (s 218(1)(c), but the real issue will be about s 218(1A) which says an organisation can only be registered as an industrial organisation if

… there is no other industrial organisation of employees to which members of the organisation might belong or, if there is such an organisation, it is not an organisation:

(i)            to which the members of the organisation could more conveniently belong, and

(ii)           that would more effectively represent those members, or

Ambulance paramedic ‘might’ or can belong to the HSU but is that convenient and who would more efficiently represent the members?

One of the principles of the Act is ‘Freedom of Association’ which one might infer is freedom to be a member of whatever union on wants, so if the paramedics want their own union they should get it.  Section 209, on Freedom of Association, says

(1)          A person is entitled to be a member of an industrial organisation, but can be prevented from becoming or remaining a member by the organisation acting under its rules and in accordance with section 260.

(2)          A person cannot be compelled to become, or remain, a member of an industrial organisation.

That is you are free to join, or not join a union as you see fit, but not any union you see fit.  This section has to be read in context with the rest of the Act including s 218 so once there is a registered organisation to which you can ‘conveniently belong’ your choice is to join that union, or not join it, not join another one just because you prefer it.

Deciding issues of whether the HSU or APA would ‘more effectively represent’ the paramedics will, I surmise, be the key issue for the tribunal.

The other case that started this week was in Victoria and is a very different matter; this is the class action arising out of the Kilmore East Black Saturday bushfires (see earlier posts on this site –

For a report on the first day of the trial, see “Negligence sparked fatal power-line fire, court told”, The Age, 5 March 2013).  An interesting quote from this story is from the judge; “Justice Jack Forrest said he would not read evidence from the commission unless it was presented as new evidence: ”This starts on a blank canvass and will be adduced on evidence in this case.”   (See also my earlier post “More from the Black Saturday litigation” on the use to be made of the Royal Commission report).  Again this may lead Victorians to query why they spent so much on a fact finding exercise if its findings of fact are not admissible in court and are already being questioned (see “New evidence challenges cause of Kilmore firestorm”, The Age, 4 March 2013).

This case is expected to take many months to resolve.  It is principally against the SPI Ausnet, the electricity supply company, but they have joined the ‘State Defendants’ (ie CFA, DSE and Victoria Police; see “Kilmore East litigation Update”, Country Fire Authority, 9 November 2011).  What implications the ultimate findings may have for fire and emergency management and the emergency services remains to be seen.

For those interested, the opening addresses of counsel (which started on 4 March, ie yesterday) but continue today, can be seen via the courts video link service at  Closing addresses will also be streamed, presumably at the same site, but not for several months.

Michael Eburn

5 March 2013