Industrial Relations Commission New South Wales

• Medium Neutral Citation: Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 (No 2) [2013] NSWIRComm 34
• Hearing dates: 2 April 2013
• Decision date: 03 May 2013
• Jurisdiction: Industrial Relations Commission
• Before: Staff J

Decision

Special Case established - further submissions in respect of orders and quantum

• Catchwords: AWARD - application for variation - leave reserved - retained firefighters - new work - community first responder - principles regarding s 3, s 10, s 146(2), s 146C of Industrial Relations Act 1996 - work value principles - net addition to duties and responsibilities when undertaking community first responder work - parties to provide further submissions re form of Orders and quantum - listed for directions
• Legislation Cited: Industrial Relations Act 1996; Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011; Industrial Relations Amendment (Public Sector Conditions of Employment) Regulation 2011
• Cases Cited: Crown Employees (Police Officers - 2009) Award (No 2) [2012] NSWIRComm 104; (2012) 220 IR 192; Firefighting Services - Wages - Firefighters and Firefighting Officers - Victoria - Award 1996 [Print N2640] [F0440]]; Re: Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 [2012] NSWIRComm 122; State Wage Case 2010 (No 2) [2011] NSWIRComm 29; (2011) 206 IR 218
• Category: Principal judgment
• Parties: NSW Fire Brigade Employees' Union (Applicant); Fire & Rescue NSW (Respondent)
• Representation: Mr J Nolan of counsel (Applicant); Mr R Reitano of counsel (Respondent); NSW Fire Brigade Employees' Union (Applicant); Fire & Rescue NSW (Respondent)
• File Number(s): IRC 1485 of 2010

Judgment

1 On 17 December 2010, the NSW Fire Brigade Employees' Union ("FBEU"), filed an application to vary the Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 ("2008 Award"). That Award was subsequently superseded by the Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2011 ("the Award"). This Award expired on 21 February 2013.

2 Negotiations between Fire & Rescue NSW ("FRNSW") and the FBEU have not yet progressed to the point of agreement on a new Award. To enable negotiations for a new Award to continue without any distraction about when salary increases were due, FRNSW sought approval from the NSW Government to pay a 2.5 per cent increase to retained firefighters by "administrative action". This increase was given effect from 22 February 2013.

3 The 2008 Award and the current Award contained a leave reserved provision in the following terms:

Leave is reserved to the Union to make application in respect of those employees who may be allocated a designated Community First Responder role.

4 In accordance with the leave reserved provisions of the Award, the FBEU's application seeks to establish an allowance of $200 per fortnight for Community First Responder ("CFR") work carried out by employees of FRNSW. CFRs whose usual duties are those of a retained firefighter perform a higher level of medical response at critical incidents, in nominated locations with the Ambulance Service of New South Wales ("ASNSW"), when it does not have an ambulance station close by to an incident. CFRs are accredited and operate under ambulance governance and training. In appropriate circumstances, they are the first response to medical emergencies in lieu of ambulance officers. The work involves the provision of a higher level of first aid than is normally required of retained firefighters, although it is not work at the level administered by ambulance officers. CFR work is performed by firefighters on a voluntary basis at six fire Brigades, being Alstonville, Branxton, Bundanoon, Bundeena, Tocumwal and Uralla in New South Wales. It commenced in 2009.

5 In 2011, the Industrial Relations Act 1996 ("the Act") was amended by the Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 ("the Amendment Act") by the insertion of s 146C. This provision specifies aspects of government policy that are to be given effect by the Commission when making or varying awards or orders. In light of this amendment, the parties each posed a preliminary question for determination. In essence, the question was was whether s 146C applied to the FBEU's application.

6 I referred the questions to Boland J, President, who subsequently on 31 July 2012, granted the application to refer to questions for decision by a Full Bench of the Commission: s 193(2) of the Act.

7 The Full Bench in its decision of 13 November 2012, set out the process that should be followed (subject to the requirements of the Act and the Regulation), in respect of any claim to increase the remuneration of public sector employees (as defined in s 146C of the Act), or to alter their conditions of employment which requires the application of Principle 8 - Arbitrated Case of the Commission's Wage Fixing Principles: State Wage Case 2010 (No 2) [2011] NSWIRComm 29; (2011) 206 IR 218. The Full Bench enunciated the method for determining a work value claim under the new Regulation at [32]: see Re: Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 [2012] NSWIRComm 122.

8 It was common ground that CFRs have received increased remuneration by virtue of increased callouts, however, there has been no increase in the rates or allowances for performing this function.

9 It is therefore necessary for the Commission to determine the work value, if any, to be given to the work undertaken by retained firefighters when they work as CFRs.

10 Mr J Nolan of counsel appeared for the FBEU and Mr R Reitano of counsel appeared for FRNSW.

CFR work

11 Neither party contested the majority of the facts in respect of CFR work. FRNSW has infrastructure in many locations that the ASNSW does not. The natural result of this is that FRNSW will often be the first-on-scene at critical incidents. As a consequence, the ASNSW requested that FRNSW respond to triple-zero ("000") calls for ambulance services in certain locations in addition to attending to the "core business" 000 calls received by FRNSW. CFRs provide a higher level of first aid response to those sick or injured until such time as an ambulance can attend.

Evidence of Mr James Smith

12 Mr Reitano read an affidavit of Mr James Smith who was appointed to the role of Deputy Commissioner Emergency Management of FRNSW on 6 July 2012.

13 Mr Smith's evidence was that all FRNSW firefighters are trained in advanced first aid, oxygen resuscitation, use of automatic external defibrillators and basic patient assessment. CFR trained firefighters have received additional training, including administration of EpiPens, Glucogon, and breathing assistance medication such as Ventolin so that they can provide first aid until Ambulance paramedics arrive, thus helping to save lives and minimise injuries.

14 The ASNSW and FRNSW signed a Memorandum of Understanding ("MOU") in July 2009 which governs the operation of this program.

15 The MOU accords the firefighters in the CFR Brigades the status of Volunteer ASNSW. The ASNSW undertakes to provide training while FRNSW provides equipment and personnel who meet eligibility criteria. A copy of the MOU was tendered during the proceedings.

16 Mr Smith annexed documentation to his affidavit which outlined the profiles and statistics for the six Brigades that undertake CFR work. The documentation demonstrated that during 2011/2012 CFR firefighters responded to 1052 medical emergencies ranging from cardiac arrest, childbirth, snake bites and major trauma.

17 By way of example, in the calendar year 2012 there were 252 out of a total of 300 calls or 84 per cent for assistance for CFR services. In the financial year 2011/2012 at Uralla, 203 out of a total of 256 calls, or 79 per cent, were for CFR services. In the calendar year 2012 at Tocumwal, 193 out of 221 calls, or 87 per cent were for CFR assistance. In the financial 2011/2012 at Alstonville, 27 out of 129 calls, or 21 per cent, were for CFR services.

18 The profile of each of the six Brigades indicated that currently there are a total of 77 retained firefighters with recruitment currently occurring in respect of additional retained firefighters at Uralla.

19 Retained firefighters are provided with first aid competencies during their recruitment training in order to become operational retained firefighters capable of responding to calls for emergency assistance without restriction. This has been the situation for a significant period of time and that training and work is specifically comprehended within the present classifications and rates of pay.

20 FRNSW fire trucks ordinarily carry first aid consumables, a defibrillator and oxygen bottles. The process of progressively establishing more specialised CFRs' functions has relied upon retained firefighters at the six Brigades volunteering to undertake additional specialised first aid training. The ASNSWs Clinical Educators provide training to the CFRs, who also have regular CFR skills maintenance drills.

21 Retained firefighters receive a fortnightly retainer to compensate them for their availability to respond to calls for emergency assistance, in recognition of the fact that retained firefighters generally hold primary jobs and their role as retained firefighters with FRNSW is, in effect, secondary employment. Retained firefighters are paid an hourly rate for their time in responding to calls for emergency assistance and for training.

22 The current fortnightly retainer ranges between $29.70 for a retained firefighter level C, and $115.30 for a retained captain level A, depending on the rank of the retained firefighter. CFR volunteer retained firefighters are typically paid at retained firefighter level B, and receive a fortnightly retainer of $44.40. Retained firefighters are paid their personal hourly rate whether participating in fire emergency or CFR incident call-outs. The range of hourly rates applicable to retained firefighter incident attendance is $29.69 to $34.28 (from 22 February 2013), with the vast majority of retained firefighters being paid the $29.69 rate.

23 The CFRs at the six Brigades now respond to a greater range of calls and thus attend a substantially higher number of yearly call-outs. This has resulted in substantially higher earnings for retained firefighters who volunteer to work at the CFR locations. I have earlier referred to the increasing rate of call-outs for retained firefighters at three of the six Brigades.

Evidence of Mr Bernard King

24 Mr Reitano also read an affidavit of Mr Bernard King, Assistant Director Employee Relations of FRNSW, which was filed in response to material relied upon by the FBEU. Mr King set out the extensive training undertaken by ASNSW paramedic trainees to contrast that received by CFRs.

25 ASNSW paramedic trainees complete eight weeks of classroom based induction before undergoing nine months on-road training, accompanied by a clinical mentor. At the conclusion of 12 months service, they undergo a further three weeks of classroom-based training before becoming an intern paramedic. They are then required to undertake a further year of practical experience on the road, followed by a further three weeks of classroom-based learning, which after two years allows the award of the Diploma in Paramedical Science Pre-Hospital Care. They are then recognised as qualified paramedics. Mr King stated that the level of training for CFRs falls well below the medical and other training provided to paramedics.

26 Specialised CFR training involves 32 hours of training over four (eight hour) days. Mr King attached the ASNSW Volunteer Ambulance Officer Training - 2012 VAO and CFR Maintenance of Skills Program - Facilitator Kit.

27 The FBEU acknowledged that the CFRs performed, within the limits of their skills, work in lieu of ambulance officers until such time as an ambulance arrived to transport a patient to hospital.

28 However, I did not understand the FBEU to be submitting that CFRs work as ambulance paramedics while awaiting the arrival of an ambulance.

29 Mr King provided a comparative table of the hourly rates between retained firefighters and Ambulance Service paramedics as follows:

RFF		ASNSW
Rank	Hourly rate	Level	Hourly rate
RFF A, B, C Dept Captain	$29.69	Trainee	$26.70
		Paramedic Intern Yr 1	$27.46
		Paramedic Yr 1	$29.78
Captain	$34.28	Paramedic Specialist Yr1	$34.32

30 For completeness, I note that Yr 2 and Yr 3 rates for paramedics and paramedic specialists are:

ASNSW
Level	Hourly rate
Paramedic Intern Yr 2	$27.98
Paramedic Yr 2	$31.92
Paramedic Specialist Yr 2	$35.27
Paramedic Specialist Yr 3	$36.33

FBEU evidence - other States

31 The FBEU tendered material that demonstrated that a number of other States in Australia operate CFR models. St John's Ambulance in Western Australia runs such a program. The Queensland Ambulance Service runs a program in conjunction in the State Emergency Service, the Rural Fire Service and Queensland Ambulance Service. Both of these States have first responder programs based upon volunteers. A first responder service also operates in Victoria where professional firefighters employed by the Metropolitan Fire Brigade perform medical first response duties. These duties are also performed under the auspices of the Ambulance Service of Victoria. Similar to the position in New South Wales, both firefighters and paramedics are despatched in Melbourne to attend medical emergencies.

Federal jurisdiction

32 Firefighters employed by the Metropolitan Fire Brigade in Victoria have performed similar work to CFRs since 1996. This work was the subject of consideration by the Australian Industrial Relations Commission, as it was then known, in 1996. In Firefighting Services - Wages - Firefighters and Firefighting Officers - Victoria - Award 1996 [Print N2640] [F0440]] Bryant DP observed that the Public Bodies Review Committee ("PBRC") recommended in early 1994 that the Metropolitan Fire Brigades Board ("the Board") extend its role to include emergency medical response. Emergency Medical Services ("EMS") had been defined as a co-ordinated arrangement of delivering resources that serves to provide timely and effective care to persons who experience sudden illness and injury. The role recommended was to be an adjunct to the EMS provided by the Metropolitan Ambulance Service. The first responder role was designed to enable firefighters, first on the scene at an accident or medical incident, to handle life-threatening situations with a basic level of skills and equipment. At the time the Commission considered the claim, the Board had budgetary constraints for the 1995/1996 financial year. It paid an allowance of $2.00 to only one designated firefighter per work base per shift for the responsibility for first aid. In determining the issue, the Deputy President observed:

The community should not be denied the opportunity to have any of its life saving emergency services extended and improved, and I determine that this service should be trialed as soon as it is possible to arrange for and have the necessary training completed. The M.F.B.B. conceded that there should be a modest payment associated with a trial and that those taking part in the trial should receive a further payment.

I have decided that it would not be appropriate for every employee who is covered by the award to receive a payment just because others are doing additional and more demanding duties.

...

Each employee who is covered by this award who individually elects to make him/herself available to carry out the E.M.S. training and who will then do those extra duties whenever required will be paid, in lieu of any first aid allowance that may otherwise be payable, $1.00 for each and every hour worked. This is not an all purpose payment and does not attract shift loadings or other payments such as superannuation and does not apply when on any form of leave, sick, annual leave or long service leave.

...

Employees who complete the training and who are then required to take part in a trial will be paid an additional amount of 50 cents for each hour worked during their involvement in the trial. Again this payment is to only apply for each hour actually worked during a trial period.

...

33 The emergency medical response work carried out by firefighters in Victoria is now covered by the Metropolitan Fire and Emergency Services United Firefighters Union of Australia Operational Staff Agreement 2010. Clause 87 provides that the parties recognise that emergency medical response is a core function of the Board and is limited to the 000 priority 0 cases which are defined as "those event types, which constitute the highest probability of cardio-pulmonary arrest. Only a limited subset of 000 priority 0 calls will be responded to as part of EMR".

34 Clause 87.4 sets out the "event types" which include breathing problems, cardiac or respiratory arrest/death, choking, convulsions, drowning, electrocution and unconscious/fainting, ineffective breathing. Clause 87 also provides for a review should EMR duties expand beyond 6000 calls annually (cl 87.6).

35 Clause 87.3 provided that every employee is to be paid an amount of $1.93 per hour worked when available to be rostered for EMR duties. At an employee's election, this allowance is reduced to 80 cents per hour and becomes an all purpose allowance and forms part of the employee's base wage for the purposes of calculating superannuation contributions.

36 The FBEU observed that the EMR allowance is paid as a flat dollar amount. This is in contrast to the methods of adjustment for rates and allowances of the Award in New South Wales where wages and allowances are adjusted annually. The FBEU contended that the effect of "this quirk" was to decrease the allowance in relative terms compared to firefighter wages. However, it provided a schedule which demonstrated that the hourly rate for a qualified firefighter and when compared to the allowance, reflected an increase of between 5.5 per cent in 2000 to 5.33 per cent in 2013, with a mean increase of 5.6 per cent over this period.

37 It should be observed that the Metropolitan Fire Brigade does not employ retained firefighters.

38 Mr King in his evidence, stated that there was a difference in the role and function of CFRs in New South Wales and EMRs in Victoria. EMRs in Victoria respond to medical emergencies in metropolitan areas and only to the category of incident 000 priority 0, whereas CFRs at the six Brigades in New South Wales respond to all emergency callouts to the Ambulance Service in the relevant areas. The FBEU acknowledged this difference and noted that the Metropolitan Fire Brigade model in Victoria was based on the simultaneous despatch of an ambulance and a fire truck to an emergency. The success of this model was based on the arrival of the fire truck before the ambulance and the application of first aid by firefighters in the intervening period between their arrival and that of the paramedics.

39 The FBEU contended that a distinguishing feature between CFRs in New South Wales and EMRs in Victoria was that the time between the arrival of the firefighters and the arrival of paramedics in Melbourne was several minutes. However, in New South Wales, the time between the arrival of CFRs and paramedics can be significant in circumstances where the ambulance is travelling from its nearest town which can be 40kms away.

40 The FBEU noted that although the Metropolitan Fire Brigade in Victoria did not employ retained firefighters, nor operate outside the metropolitan area, it was the closest analogy available for comparison in Australia of professional firefighters responding to emergency medical calls under the auspices of the relevant ambulance service.

Crown Employees (Public Service Conditions of Employment) Award 2009

41 FRNSW drew the Commission's attention to cl 51 of the Crown Employees (Public Service Conditions of Employment) Award 2009, which provides an allowance for employees willing to utilise their basic first aid skills in the workplace of $788 per annum. The same Award provides an allowance of $1184 per annum for employees willing to utilise Occupational First Aid skills in the workplace. These allowances are payable to fulltime employees working a 35 or 38 hour week. Retained firefighters' hours are not fixed but variable based on attendances at training and incidents.

42 Mr King annexed copies of the relevant Award provisions to his affidavit.

43 FRNSW submitted that given CFR training is 32 hours in addition to FRNSW's first aid training, that an appropriate comparator may be the difference between a "Basic First Aid Allowance" and the "Occupational First Aid Allowance" which involves a difference of 30 hours of additional training. The difference between the current "Basic First Aid Allowance" and the "Occupational First Aid Allowance" in the Crown Employees (Public Service Conditions of Employment) Award 2009, is $396 per annum.

44 FRNSW emphasised that it was important to bear in mind that this allowance is payable to employees working 35 or 38 hours per week. It also emphasised the increased remuneration that would be available to CFRs by reason of the higher incidence of work that would be available to them by reason of their volunteering to provide the CFR function.

45 The FBEU submitted that the comparison between the "first aid" allowance and the "occupational first aid" allowance in the Crown Employees (Public Service Conditions of Employment) Award 2009 "does not bear scrutiny". It contended all firefighters, retained and permanent, are required to hold and maintain first aid qualifications as part of their employment as a firefighter and cannot perform the duties of a firefighter without these qualifications. By contrast, it was contended there was no requirement for any of the employees covered by the Crown Employees (Public Service Conditions of Employment) Award 2009 to hold any first aid qualifications. The qualifications were held at the election of the employee and allowances were paid upon appointment to the position of first aid officer by the employer. By contrast, the FBEU submitted firefighters were required to hold first aid qualifications and there was a limited ability to elect to perform CFR work.

46 An employee who holds an occupational first aid certificate may only be appointed "in a workplace with 200 or more staff members (100 for construction sites)" as provided for in cl 51.3.1 of the Crown Employees (Public Service Conditions of Employment) Award 2009.

47 The FBEU also submitted that these qualifications had limited relevance, if any at all, to professional emergency service workers, such as firefighters performing a specialised medical function in relation to members of the general public, as these qualifications apply generally, although not exclusively, to white collar workers who may be called upon to perform first aid to assist their fellow employees in the workplace. Such duties are incidental to the employees covered by the Crown Employees (Public Service Conditions of Employment) Award 2009. However, the duties of firefighters carrying out CFR work is a large and central part of the work of retained firefighters.

Consideration

48 The issue for determination by the Commission is whether the FBEU has made out a case that there has been an improvement in the work value of retained firefighters who volunteer for CFR work and, if so, what should be done?

49 In order to answer this question, it is necessary to determine a number of further questions, particularly in addressing the wage fixing principles. I will address these questions shortly. It will be recalled that an allowance of $200 per fortnight is sought by the FBEU for carrying out CFR work.

50 As I have already noted, cl 35 of the 2008 Award provided leave reserved to the FBEU to bring such a claim.

51 The application is advanced under principle 8.2(e) of the Commission's Wage Fixing Principles set out in the State Wage Case 2010 (No 2). Relevantly, Principle 8 is in the following terms:

8.1 General

Any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the Principles, will be processed as an Arbitrated Case by a Full Bench of the Commission unless otherwise allocated by the President. In determining such an application, the Commission shall, subject to the relevant provisions of the Act, do so in accordance with the following criteria:

8.2 Work Value Considerations

...

(e) Where new or changed work justifying a higher rate is performed only from time to time by persons covered by a particular classification, or where it is performed only by some of the persons covered by the classification, such new or changed work should be compensated by a special allowance which is payable only when the new or changed work is performed by a particular employee and not by increasing the rate for the classification as a whole.

...

52 The reference to "relevant provisions of the Act", in Principle 8.1 encompasses s 3, s 10 and s 146(2) of the Act.

53 The Full Bench in Crown Employees (Police Officers - 2009) Award (No 2) [2012] NSWIRComm 104; (2012) 220 IR 192 referred to these sections at [68] - [71]:

[68] The requirement under s 10 of the Act for the Commission to make awards setting fair and reasonable employment for employees has been variously described as "a binding requirement or obligation": Re Pastoral Industry (State) Award [2010] NSWIRComm 27; (2000) 104 IR 168 at [16]; and "a statutory or paramount requirement": Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award, Re [2004] NSWIRComm 114; (2004) 133 IR 254 at [432] ('Crown Employees (2004)'). That obligation must be exercised in the present matter in the context of existing award conditions which are sought to be altered in contested proceedings: Pastoral Industry Award at [16].

[69] In considering the general claim and the counter application, the Commission is also bound by s 146(2) to take into account the public interest in the exercise of its functions. It is required, for that purpose, to have regard, under sub-s 2(a), to the objects of the Act. Those objects, which appear in s 3 of the Act, emphasise a broad range of matters. In the present context, we consider that the following objects are apposite:

3 Objects

The objects of this Act are as follows:

(a) to provide a framework for the conduct of industrial relations that is fair and just,

(b) to promote efficiency and productivity in the economy of the State,

...

(e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments,

...

(h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations.

[70] When taking into account the public interest, the Commission must also, for that purpose, have regard to "the state of the economy of New South Wales and the likely effect of its decisions on that economy". Whilst that requirement (which is found under s 146(2)(b) of the Act) might not always operate in favour of restraint, the long history of jurisprudence in this Commission and its predecessors would indicate that the provision more often operates as the limitation or restraint in the award making function (particularly in relation to wage fixing) and, in that respect, may, to some extent, be seen as a juxtaposition of the provisions of s 10 of the Act.

[71] There is a long line of cases in this Commission considering the reconciliation of those provisions. We consider that the observations of the Full Bench in Re Public Hospital Nurses (State) Award (No 4) [2003] NSWIRComm 442; (2003) 131 IR 17 at [233] ('Public Hospital Nurses (No 4)') amply set out the relevant principles:

As the HAC contended, the Commission is required, pursuant to s 146(2) of the Act, to take into account the public interest in the exercise of its functions and, for that purpose, must have regard, inter alia, to the state of the economy of New South Wales and the likely effects of its decisions on that economy. Hence, even though wage increases may be justifiable under the work value principle, if to grant them were to have an adverse impact on the economy, a case may exist for restraint. The onus of demonstrating the need for restraint would fall on those opposing the increase because unless it can be convincingly demonstrated that real harm will be done to the economy by the granting of any increase, the employees concerned are entitled to receive remuneration commensurate with the value of their work.

54 In addition to complying with the above statutory provisions and Wage Fixing Principles, the method for determining a work value claim under the new Regulation requires the process set out by the Full Bench in Re: Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008, to which I have earlier referred, to be followed.

55 FRNSW agreed that the rate contained in the Award for retained firefighters did not comprehend the work undertaken by CFRs. Both parties described the determination of work value in this matter by the Commission as involving a "somewhat daunting process" and being "extremely difficult".

56 The reason for the characterisation of the Commission's task, so it was submitted by FRNSW, was partly due to the fact that the Commission was dealing with a very unique type of employee. A retained firefighter is not an employee who is employed on a permanent basis in the sense of working permanent hours each week. A retained firefighter receives remuneration by way of a retainer that varies between $29.70 to $115.30, depending upon the rank of the retained firefighter per fortnight. As the concept implies, the retained firefighter receives this payment irrespective of whether he or she does or does not perform any work each fortnight.

57 In addition to the retainer, the retained firefighter receives an hourly rate of pay, again depending on rank, of between $29.70 and $34.30, if called upon to perform duties. The retained firefighter receives the hourly rate of pay if called upon to attend a fire, or if required to undertake CFR duties. It follows that a retained firefighter is therefore remunerated for carrying out CFR duties.

58 The duties of a retained firefighter include attending upon fires and responding to calls for emergency assistance. Retained firefighters have basic first aid skills.

59 The evidence discloses that usually a retained firefighter would be required to either perform their duties as a firefighter or be called out to perform CFR duties. The latter duties are not normally performed in addition to firefighting duties.

60 In these circumstances, in my view, when considering the work undertaken by firefighters performing CFR work, it is important to bear in mind that firefighters receive both a retainer and an hourly rate of pay for carrying out this work. In addition, the CFR work is entirely voluntary.

61 It is therefore necessary to determine whether the work of CFR firefighters is comprehended in the historical duties of retained firefighters. While there is some overlap in respect of first aid training, the overlap is moderate with the CFR work transcending the duties of retained firefighters.

62 This work, which is clearly different to the traditional work of retained firefighters, involves additional training in respect of injury assessment and allows administration of medications including injections as referred to in the evidence of Mr Smith.

63 The FBEU submitted that the evidence demonstrates that the CFR work carried out by retained firefighters is new and different work and not previously comprehended in the grades for retained firefeighters.

64 The evidence, particularly that of Mr King, is that retained firefighters are required to undergo lifesaving first aid training as part of their ordinary role. This training is provided to them during recruitment so that they may become operational retained firefighters capable of responding to calls for emergency assistance without restriction.

65 The evidence further demonstrates that this has been the case for a significant period of time and that the training and the work was specifically comprehended within the present classification and rates of pay. The process of progressively establishing the additional specialised CFR function has relied upon retained firefighters at the six Brigades volunteering to undertake additional specialised first aid training. This training involves 32 hours of training over four (eight hour) days.

66 In light of this evidence, the work of retained firefighters can only be described as "new" when they carry out the specialised CFR function which requires a higher level of first aid skills.

67 Furthermore, work involving the CFR function can only be described as "different work" when retained firefighters are called upon to perform such work. In many situations, for example, attending a fire or a rescue situation where a retained firefighter may be required to engage in tasks such as resuscitation and provide first aid because of a fire, the actual work that is being performed in these circumstances will invariably be the same as that performed when carrying out CFR work. However, the CFR firefighter has additional specialised skills as a result of the CFR training and regular maintenance training that enables he or she to carry out an additional specialised function. Their work involves a first response to medical emergencies. What follows from this is that the Commission is dealing with what may be described as a traditional work value case where an employee, albeit, on an irregular basis, engages in work which includes some aspects that are new and different to work previously undertaken by a retained firefighter.

68 The FBEU acknowledged that all firefighters, retained and permanent, are required to hold and maintain first aid qualifications as part of their employment as a firefighter and cannot perform the duties of a firefighter without these qualifications.

69 To the extent that it was submitted by the FBEU that retained firefighters undertaking CFR work act in lieu of ambulance officers, FRNSW strongly submitted that there were significant differences between the work value of ambulance officers and paramedics and retained firefighters carrying out CFR work. The evidence of Mr King demonstrates the difference in training received by ambulance paramedics and the level of training provided for CFR retained firefighters. The latter falls well below the medical and other training of an ambulance paramedic. However, in my view, based upon a proper understanding of the evidence, the work of CFR firefighters can be said to be more analogous to that of ambulance officers than firefighters. CFR firefighters provide a higher level of first aid response to those that are sick and injured until an ambulance can attend.

70 In order to carry out the additional specialised functions, further training and first aid skills were required prior to introducing the new model. CFR retained firefighters carry out important emergency services in the six regional Brigades. The work is, on occasions, critical, resulting in lives being saved and/or the impact of illness or injury being reduced in regional communities. CFR work may also, on occasions, reduce demands on the Ambulance Service. This work in my view, falls into a discrete category and is broader than that carried out in Victoria.

71 I find, in net, that the performances of CFR work involves additional duties, responsibilities, and accountabilities over those possessed by the retained firefighter under their existing classification.

72 The next question to be determined is whether the fact that CFR work, which may be performed as a discrete duty of the retained firefighter, would have some impact on the conclusion that may be reached in respect of whether there has been an improvement in work value.

73 The answer, in my view, is "no" because this matter has been approached on the basis that there not be a new classification of CFR firefighter. The reason for this is that the work is performed by retained firefighters and the approach of FRNSW is to use existing resources to carry out the public function of providing assistance to members of the community involved in accidents and emergencies pending the arrival of an ambulance.

74 FRNSW has determined that it is appropriate to use its existing workforce to perform the CFR duties. Although retained firefighters may carry out CFR duties with their historical duties, once they commence performing work as CFR retained firefighters, the employees are performing a new function over and above those required to be held and carried out by retained firefighters.

75 From a work value viewpoint, CFR duties must be recognised as a work value improvement to the existing work of retained firefighters.

76 The next question that arises is whether the new work meets the requirements of the wage fixing principles that there has been a net addition to the retained firefighters' responsibilities when carrying out CFR work. In my view, the answer must be "yes". I have already referred to the additional skills required by CFR retained firefighers. Although the existing rate for retained firefighters includes a component for having first aid skills, CFR retained firefighters are required to undertake an additional 32 hours of first aid training and ongoing maintenance training. Firefighters carrying out CFR duties are performing a specialised function which requires a higher level of first aid skills resulting in an additinal specialised function. It attracts different and additional training in order to carry out such work and that work is different to that undertaken by retained firefighters when carrying out their normal duties.

77 The FBEU submitted that an appropriate reference point and comparator was the decision of the Australian Industrial Relations Commission that considered similar work carried out by firefighters in Victoria and the relevant provisions of the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia Operational Staff Agreement 2010 ("the Agreement").

78 In my view, there are a number of important aspects that distinguish the role and function of CFR retained firefighters and firefighters who carry out emergency response work in Victoria. These include that emergency medical response firefighters only respond to category 000 priority 0 incidents, whereas CFR retained firefighters respond to all emergency callouts for ambulances that occur in the six Brigades. Although I accept that in broad terms the work of the medical response firefighters and CFR retained firefighters is not dissimilar work, the rate that was determined for this work was in the context of permanent fulltime employees working a 38 hour week. A further point of distinction is that the CFR firefighters will normally be required to remain with a sick or injured person for longer periods because of the distance that an ambulance has to travel in regional New South Wales compared to Metropolitan Melbourne. In addition, the rate struck was not an all purpose rate and did not apply to leave entitlements or superannuation. What the FBEU seeks here is an all purpose allowance for CFR work.

79 If an employee who is covered by the Victorian Agreement elects to have the allowance treated as an all purpose allowance, that allowance reduces from $1.93 per hour to 80 cents and becomes an all purpose allowance and forms part of the employee's base wages.

80 Furthermore, the rate struck by Bryant DP did not take into account any pre-existing or established first aid skills which firefighters were required to exercise. Prior to the implementation of the emergency medical response by Victorian firefighters, those firefighters were not required to have first aid skills. The current rate for retained firefighters comprehends that both retained firefighters and permanent firefighters will have first aid skills. The fact that the Agreement contemplates that Victorian firefighters would only attend 000 priority 0 calls which involve the highest probability of cardiac pulmonary arrest resulted in FRNSW submitting that there was therefore a higher level of expectation, skill and training required in respect of the Victorian firefighters than there may be in respect of the workplace under consideration here. This may be the case in respect of certain incidents, however, the CFR work is unrestricted. During 2011/2012 FRNSW responded to 1052 medical emergencies ranging from cardiac arrest, childbirth, snake bite and major trauma.

81 In respect of the Victorian model, both a fire truck and an ambulance are despatched to 000 priority 0 incidents and more often than not arrive within minutes of each other.

82 In my view, the Victorian comparator does not readily affect what is being considered here. However, it does enable the Commission to have an appropriate point of comparison capable of being one of the overall considerations that can be taken into account in determining how the CFR work should be valued by the Commission.

83 Similarly, in my view, the allowances provided for under the Crown Employees (Public Service Conditions of Employment) Award 2009 are of limited assistance. I agree with the submissions of the FBEU that public servants holding such qualifications are not readily compared to emergency services workers such as firefighters performing a specialised medical function in relation to members of the general public. The qualifications apply in general to white collar workers who may be called upon to perform first aid to assist their fellow employees in the workplace. Such duties are incidental for the employees covered by the Crown Employees (Public Service Conditions of Employment) Award 2009, but are a central part of the work of retained firefighters performing CFR.

Conclusion

84 I find that the FBEU has established a special case and has demonstrated that the work value of retained firefighters carrying out CFR work encompass skills over and above those required of retained firefighters who do not carry out such work. It follows, and I find, there is an increased component in the duties carried out by CFR retained firefighters which has resulted in an improvement in work value.

85 There was debate in respect of how the work value should be assessed. As the parties observed and, as I have endeavoured to demonstrate, the task of determining an amount for the work value of CFR work is complex. The FBEU pressed its claim for a CFR allowance of $200 per fortnight. FRNSW submitted that if the Commission were persuaded that the FBEU had established a case, the Commission should award any increase by way of increasing of the retainer for retained firefighters which is paid fortnightly. It should be limited, so it was submitted, to retained firefighters carrying out the CFR work at the six designated Brigades in regional New South Wales.

86 The wage fixing principles require the Commission to consider whether it has found there exists a net addition to the responsibilities and duties carried out by employees and whether it should be treated by way of a new classification, an amended classification, or an allowance.

87 Bearing in mind that all retained firefighters receive a fortnightly retainer and are paid an hourly rate when carrying out their duties, my preliminary view is that the existing classification should be revamped and a new rate set for CFR retained firefighters, rather than an allowance. It follows that I am not attracted to FRNSW submission that there should be an increase in the retainer. Retained firefighters are currently remunerated for carrying out CFR work. They receive the same rate as retained firefighters receive for their work. The improvement in work value, it seems to me, should therefore be reflected in the hourly rate.

88 In light of the findings and the preliminary conclusion that I have reached in respect of how the matter should be finalised, I propose to hear further submissions from the parties in respect of the form of orders that should be made in this matter and in respect of quantum.

89 Finally, I should observe that it was common ground that the operative date of any increase would be dependent upon satisfying the requirements of s 146C of the Act and the Industrial Relations Amendment (Public Sector Conditions of Employment) Regulation 2011. I note that the parties are currently in negotiations in respect of a new Award and that the costs of any determination in this matter may become part of these Award negotiations.

90 This matter is listed for directions at 9.45am on Friday 3 May 2013.

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Decision last updated: 03 May 2013