Industrial Relations Commission New South Wales

• Medium Neutral Citation: Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 (No 3) [2013] NSWIRComm 52
• Hearing dates: 7 June 2013
• Decision date: 21 June 2013
• Jurisdiction: Industrial Relations Commission
• Before: Staff J

Decision

1In all the circumstances, having undertaken an assessment of factors relevant to the work value of retained firefighters who carry out Community First Responder ("CFR") work, I grant an increase of 7 per cent in the hourly rates of pay for these firefighters. The new hourly rates for what will be known as CFR Retained Firefighters, Levels A, B and C, CFR Captains and CFR Deputy Captains shall be struck by increasing the current rates as found in the Award for Retained Firefighters, Levels A, B and C and Captains and Deputy Captains by 7 per cent.

2Pursuant to s 17(3)(d) of the Industrial Relations Act 1996, I vary the Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2011 in accordance with the findings in this decision.

3I direct the Fire Brigade Employees' Union to file draft orders for variation of the Award reflecting this decision within seven days of the date of this decision. In this respect the parties should give consideration as to whether the variation should include a definition of CFR work.

4I again 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 Industrial Relations Act 1996 ("the Act") and the Industrial Relations Amendment (Public Sector Conditions of Employment) Regulation 2011.

• Catchwords: AWARD - variation - work value - new classification - quantum - requirements of s 146 of Industrial Relations Act 1996
• Legislation Cited: Industrial Relations Act 1996; Industrial Relations Amendment (Public Sector Conditions of Employment) Regulation 2011
• Cases Cited: Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 (No 2) [2013] NSWIRComm 34; Re: Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 [2012] NSWIRComm 122
• 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 3 May 2013, I found that the NSW Fire Brigade Employees' Union ("FBEU"), had established a special case and demonstrated that the work of retained firefighters carrying out Community First Responder ("CFR") work, encompassed skills over and above those required of retained firefighters who do not carry out this work: Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 (No 2) [2013] NSWIRComm 34.

2 At [4] of the decision I observed:

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.

3 The conclusions that I reached were set out at [84] - [89] of the decision:

[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.

4 It follows that this decision will determine the quantum of increase that should be awarded in light of the conclusion that I reached that there has been an improvement in work value of retained firefighters carrying out CFR work.

Position of the parties

5 It was common ground that a new classification should be established to be known as CFR Retained Firefighter, CFR Captain and CFR Deputy Captain.

6 Mr J Nolan of counsel, who appeared for the FBEU, submitted that the applicant had amended its position to now seek an increase of 20 per cent in the hourly rate for Retained Firefighters, Levels A, B and C, and Deputy Captains. This represented an increase of $5.79 ($28.97 to $34.76) in respect of the rates currently provided by the Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2011 ("2011 Award") for Retained Firefighters.

7 An increase of 17.3 per cent was sought in the hourly rate of pay for CFR Captains. This would result in an increase from the existing hourly rate of $33.44 to $39.23. The increase of $5.79 per hour to the rate of Retained Firefighters who carry out CFR work would result in an additional annual payment of $1389.00 per annum.

8 It was submitted that this would result in an increase in the total wages bill of less than 0.3 per cent. The assumptions underpinning this submission were that if all 76 CFR Retained Firefighters employed at six Regional Stations attended the highest number of callouts, that being from the Branxton Station which had 240 calls in the past 12 months, and if each of those calls were to last for one hour or less, that this would result in a small increase in the total wages bill.

9 Mr Nolan sought to distinguish the allowance paid to firefighters in Victoria covered by the Metropolitan Fire and Emergency Services Board, United Firefighters Union of Australia, Operational Staff Agreement 2010. This Agreement provides that firefighters whose roles include Emergency Medical Response ("EMS") work to triple-zero ("000") calls in the Metropolitan area of Melbourne, receive an additional amount of $1.93 per hour or, 80 cents per hour if the employee sought to have the allowance treated as an all purpose allowance and to form part of the employee's base wage. Triple-zero calls are defined as "those event types, which constitute the highest probability of cardio-pulmonary arrest" in the Metropolitan area of Melbourne.

10 Counsel noted that Victorian firefighters work a 42 hour week and therefore the 80 cents per hour allowance equated to $33.60 per week and the $1.93 allowance, to $81.06 per week.

11 Counsel further submitted that if the Victorian allowance were relevant, the appropriate benchmark was the $1.93 rate. Therefore, if the hourly rate were increased by $1.93, this would result in a 6.6 per cent increase of the current hourly rate for retained firefighters carrying out CFR duties. If paid to all 76 CFR firefighters, it was submitted, the costs would be approximately $43,000 per annum, which represented an increase of .1 per cent of the total retained firefighter wages bill.

12 Mr Nolan further submitted that CFR duties involve a much broader role and skills set than the work carried out by their Victorian counterparts. Applying an increase of 80 cents to the retained firefighter's hourly rate and assuming 240 calls per annum, this would result in an annual payment of approximately $192.00. Using the figure of $1.93 per hour, this would result in an annual payment of $463.00.

13 Mr R Reitano of counsel appeared for Fire & Rescue NSW ("FRNSW"). His submissions may be summarised as follows:

(i) the cost of any increase is irrelevant to the exercise that the Commission is required to undertake in quantifying the increase in the hourly rate of pay for retained firefighters who carry out the CFR work. Such costs may be relevant 12 months from the date of any increase in the rate. At that time it will be necessary to determine whether costs savings have or have not been realised in accordance with the Government's Wages Policy;

(ii) the incidence or duration of any particular CFR callout is not relevant because the employees will receive a rate of pay as a CFR retained firefighter irrespective of whether they are called out every hour of the week, or whether they are called out for no hours in the week. The hourly rate will address the duration of the incidence of callouts;

(iii) FRNSW acknowledged that there should be an hourly rate and that such rate should be an all purpose rate;

(iv) in respect of the rate for Victorian firefighters carrying out EMS work, the appropriate rate is 80 cents, which is both superable and payable for all services. That is the appropriate comparator, not the rate of $1.93. This is so because FRNSW's contention is that the hourly rate will be both superable and payable for all purposes;

(v) the evidence of Mr Bernard King was that retained firefighters were required to undergo lifesaving first aid training as part of their ordinary role. This training is provided to them during recruitment;

(vi) the Commission found at [78] that:

... 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.

(vii) the allowance that was struck in 2010 has not increased, although the hourly rate for Victorian firefighters has increased in 2011, 2012 and 2013;

(viii) the most favourable point of relativity between the 80 cents allowance and the hourly rate is therefore 2010. The percentage that 80 cents bears to the hourly rate of $32.94 for a Victorian firefighter is 2.42 per cent;

(ix) rates for CFR trained retained firefighters should therefore be adjusted by 2.42 per cent.

Consideration

14 The issue for determination, as I have already observed, is the quantum of the increase that should be awarded for the work value of CFR Retained Firefighters.

15 The FBEU seeks an increase of 17.3 per cent in the hourly rates for CFR Captains and an increase of 20 per cent in the hourly rates for CFR Retained Firefighters Levels A, B and C and CFR Deputy Captains who carry out CFR work. FRNSW proposes an increase of 2.42 per cent in the hourly rates of retained firefighers who carry out CFR work.

16 I have already found in my earlier decision at [82] that:

... 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.

17 I reached this finding after considering the evidence in respect of the payment of the allowance to Victorian firefighers for EMS work and the type of work undertaken by them.

18 I agree with the submissions of Mr Nolan that CFR Retained Firefighters attend a broader variety of incidents than their counterparts in Victoria. CFR Firefighters' work ranges from attending calls in respect of persons experiencing cardiac arrest, childbirth, snake bites and/or major trauma.

19 I found at [69] that the training of CFR Retained Firefighters falls well below the medical and other training of an ambulance paramedic, although the work of CFR Firefighters can be said to be more analogous to that of ambulance officers than firefighters.

20 In light of the further submissions received from the parties, I determine that a new classification of CFR Retained Firefighter, CFR Captain and CFR Deputy Captain be established.

21 The resolution of the proceedings requires this Commission to reach a balance, as contemplated by the Industrial Relations Act 1996 ("the Act") between the interest of the parties and the successful prosecution by the FBEU of its application. This Commission is also required to consider the public interest, the nature and extent of the changes in the work of retained firefighters who carry out CFR work, the wage fixing principles, and the principles determined by the Full Bench in Re: Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 [2012] NSWIRComm 122.

22 In all the circumstances, having undertaken an assessment of factors relevant to the work value of retained firefighters who carry out CFR work, I grant an increase of 7 per cent in the hourly rates of pay for these firefighters. The new hourly rates for what will be known as CFR Retained Firefighters, Levels A, B and C, CFR Captains and CFR Deputy Captains shall be struck by increasing the current rates as found in the Award for Retained Firefighters, Levels A, B and C and Captains and Deputy Captains by 7 per cent.

23 Pursuant to s 17(3)(d), I vary the Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2011 in accordance with the findings in this decision.

24 I direct the FBEU to file draft orders for variation of the Award reflecting this decision within seven days of the date of this decision. In this respect the parties should give consideration as to whether the variation should include a definition of CFR work.

25 I again 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 Industrial Relations Act 1996 ("the Act") and the Industrial Relations Amendment (Public Sector Conditions of Employment) Regulation 2011.

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Decision last updated: 21 June 2013