Crown Employees (Fire and Rescue NSW Firefighting Staff Death and Disability Award) 2024 [2026] NSWIRComm 1020 (13 March 2026)

(1) an award with a three-year term;

(2) new provisions for a "Health Screening Program" to be inserted "by consent" following the 36-month trial provided for in the 2023 Award, and "removal of previous Health Check clauses held in schedule 1 of the 2023 Award"; and

(3) a new provision "to insert the new formula pertaining to the benefits provided to retained firefighters covered by the Award in the circumstances of Off Duty Death and Total and Permanent Incapacity referred to in clause 11.4".

1. On 14 August 2024, the Industrial Relations Secretary, on behalf of Fire and Rescue NSW, filed a competing application for a new 2024 D&D Award. The Secretary's initial application sought only an award with a nominal term of 3 years and "the simplification of processes and/or modernisation of certain clauses contained in the 2023 Award". Later, the Secretary sought to amend cl 4.3 by removing the requirement to consult in relation to the Health Screening Program.
2. Following unsuccessful conciliation hearings, the applications were heard by a Full Bench over 12 days in February, March and April 2025 in conjunction with applications in respect of the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2024 (Permanent Award) and the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2024 (Retained Award). The Full Bench delivered its principal decision in respect of the applications on 4 August 2025: Fire Brigade Employees' Union v Industrial Relations Secretary (on behalf of Fire and Rescue NSW) [2025] NSWIRComm 1063 (PD).
3. As the Full Bench explained at PD [660]: "The D&D Award provides benefits which are payable to permanent and retained firefighters who have suffered an on duty or off duty injury which results in their permanent incapacitation, permanent partial incapacitation, or death. The benefits conferred on firefighters by the D&D Award are additional to benefits that might be paid under the First State Superannuation Scheme or workers compensation payments."
4. The Full Bench determined, for the reasons set out at PD [661] - [675], that the FBEU's claim for an amendment to cl 11.4, which prescribes a calculation method for the off duty benefit payable to firefighters in the case of death or total and permanent incapacity to be adjusted depending on the extent of contributions made and the long term costs of providing the benefit, should be listed for further conciliation before me and if conciliation failed to result in a consent position, the applications for a new D&D Award would be listed for further hearing.
5. While the Full Bench did not expressly discuss the FBEU's claim for a "Health Screening Program" to be inserted into the D&D Award "by consent" following the conclusion of a 36-month trial which was provided for in the 2023 Award, and "removal of previous Health Check clauses held in schedule 1 of the 2023 Award", the Full Bench rejected, at PD [612], the related proposal by the FBEU to amend the Permanent and Retained Awards to permanently implement the Health Screening Program at the end of the 36-month trial, unless otherwise agreed between the parties, on the basis that the trial should first be allowed to run its course.
6. At PD [676] the Full Bench rejected the Secretary's claim that cl 4.3 of the D & D Award should be amended to remove the requirement to consult in relation to the Health Screening Program.
7. Thus, following delivery of the PD, the only outstanding issue between the parties concerned the wording of cl 11.4.
8. The applications were listed for conciliation before me on 11 September 2025, (together with the applications in respect of the Permanent and Retained Awards, the parties having been directed by the Full Bench to address certain matters arising from the PD in respect of those awards by way of conciliation). Further conciliation hearings were conducted on 22 September 2025, 20 October 2025 and 27 October 2025, although the majority of time spent during those conciliations concerned the Permanent and Retained Awards.
9. On 26 November 2025, the Secretary provided draft wording for a new cl 11.4 to the FBEU for its consideration. At a directions hearing on 28 November 2025, and at the request of the parties, who wished to have further time to discuss the proposed wording, I listed the applications for a report back on 29 January 2026. On that day the parties requested further time to consider the wording and the matter was listed for report back on 26 February 2026.
10. On 26 February 2026, the solicitor for the Secretary advised the Commission ahead of the report back, that the parties had come to an agreement with respect to the proposed 2024 D&D Award and, to that end, a fresh Application in Respect of an Industrial Instrument had been filed in both proceedings, seeking that a new award be made by consent, in the terms of the document attached as "Schedule A" to the new application. They also advised that a supporting affidavit, as required by Practice Note 6, would be filed within 7 days. In the circumstances I made the following orders in chambers:

1. The Secretary is directed to file an affidavit in support of the application for a new award pursuant to rule 6.8 by 4:00pm on 5 March 2026.

2. The FBEU is directed to confirm its consent to the making of the new award and that the making of the award will resolve proceeding nos. 2024/68974; and 2024/301376 by no later than 4:00pm on 5 March 2025.

3. By consent, the listing of matter nos. 2024/68974 and 2024/301376 on 26 February 2026 is vacated.

4. Upon compliance with orders 1 and 2, the application for the new award will be determined in chambers, on the papers.

1. Section 10 of the Industrial Relations Act 1996 (NSW) (IR Act) provides that the Commission may make an award in accordance with the IR Act 'settling fair and reasonable conditions of employment for employees". Section 17 provides that the Commission may rescind an award with the mutual consent of all the parties to the making of the original award, and ss 11, 13 and 15 of the IR Act, which apply to the making of awards, also apply to any such recission.
2. Pursuant to sub-principle 3.1(6) of the 2024-2025 Award Making Principles: State Wage Case 2024 (No 4) [2024] NSWIRComm 25; 337 IR 182,[1] an award may be made without the application needing to be considered as an Arbitrated Case under Principle 9, which is to be heard by a Full Bench, unless otherwise allocated by the President, where the application is consented to by the parties, and where the award otherwise complies with the requirements of the IR Act. In circumstances where the application for the new award is now made by consent, I may proceed to determine the application, rather than have the matter return to the Full Bench.
3. Pursuant to order 2 made on 26 February 2026, the solicitor for the FBEU advised the Commission by email sent on 5 March 2026, that the FBEU consents to the making of the new award and confirmed that the making of the award will resolve proceedings nos. 2024/68974 and 2024/301376.
4. The proposed new D&D Award removes the current wording of cl 11.4 and replaces it with the following wording:

"The Benefit as a multiple of the Deemed annual salary as set out in clause 11.3 shall only apply to permanent firefighters. In the case of retained firefighters, their Benefit shall be determined as 62.5 percent of the corresponding benefit for permanent firefighters."

1. The previous wording of cl 11.4 is extremely convoluted and frankly, difficult to follow. It reads:

"The actuary shall separately review and assess the cost of the benefits provided by this Award for both permanent firefighters and retained firefighters by 30 June each year. In the event that the actuary's review finds that the long-term cost of the off duty benefits provided by this clause for either employee group exceeds both (a), the long-term contributions to be made by that employee group, and (b), 30% of the long-term combined cost of the benefits provided clauses 9, 10 and 11 for that employee group, then the scale at subclause 11.3 shall be reduced for that employee group on 1 January next to the extent necessary to ensure that the long-term cost of the off duty benefits for that employee group no longer exceeds either (a) or (b). Once the scale is reduced for an employee group it shall remain subject to annual adjustment, both upwards and downwards as each review permits, until such time as the scale at subclause 11.3 is returned to provided that where any adjustment would be less than 5% then no adjustment will be made."

1. The Full Bench explained the rationale for amendment of cl 11.4 by refence to evidence given by the FBEU's State Secretary, Leighton Drury:

" ... during the negotiations for the 2023 Awards, the parties were jointly approached by the trustees of the Death and Disability Board which independently administers the fund seeking changes to the Award. As Mr Drury understood it, the trustees were seeking to stabilise the current benefits, which currently fluctuate depending on when the claim is made.

On 28 November 2022, the Fund's Secretary wrote to the parties stating that the Fund had been corresponding with the parties during the course of the year on the issue. He wrote:

"The Trustee recommends that this test [in cl 11.4] be replaced as it does not appear to be an effective mechanism to maintain the lump sum benefit amounts. It has resulted in the retained off duty benefits being varied in each of the last 5 years due to changes in prevailing interest rates including causing these benefits to be reduced by 25% on 1 January 2023. The Trustee has instead proposed that the off duty lump sum benefits for each of the retained and permanent cohorts are proportional to the contribution amount that members of each cohort makes."[2]

1. The Application filed on 26 February 2026 explained that the proposed amendment to cl 11.4 is intended "to eliminate volatility and to better ensure that the off duty lump sum benefits for each of the retained and permanent cohorts are proportional to the contribution amount that members of each cohort makes. The new calculation method proposes to achieve these outcomes by providing for a fixed benefit amount of 62.5%, which is obtained by dividing the percentage of Deemed fortnightly salary that Fire and Rescue contributes for a Retained firefighter (as per cl 6.5) by the percentage of Deemed fortnightly salary that a Permanent firefighter is required to contribute (as per cl 6.1) (0.5/0.8 = 0.625)."
2. The proposed new D&D Award also contains some minor amendments to modernise the award, update incorrect references and correct typographical errors.
3. The proposed new D&D award is to apply for three years, effective from 1 July 2024 and will rescind and replace the 2023 D&D Award.

1. In support of the application the Secretary relied on an affidavit of Lisa Johnstone, Director Industrial Relations, Fire and Rescue New South Wales, affirmed on 4 March 2026. Ms Johnstone gave the following evidence:

"Equal Remuneration

6. The proposed new Award provides for equal remuneration and other conditions of employment for men and women under the Award who are performing work of equal or comparable value.

7. To the best of my knowledge, the proposed new Award provides:

a. for the payment of equal benefits for men and women;

b. the same eligibility criteria for the benefits owed under this Award for men and women for each job classification;

Public Interest

8. The making of the proposed new Award is in the public interest, having regard to the factors in ss 3 and 146(2) of the IR Act, as well as that the parties to the Award have negotiated and seek the proposed variations by consent.

Objects of the IR Act

9. The proposed new Award accords with the objects in s 3 of the IR Act, as, in my opinion, the amendments to the Award:

a. will provide a framework for the conduct of industrial relations that is fair and just by amending the calculation of off duty lump sum benefits in cl 11.4 to better ensure that the payment of benefits to retained and permanent firefighters are proportional to the contribution amount made by each cohort.

b. will encourage equitable productive workplace relations by ensuring the payment of off duty lump sum benefits are proportional to the contribution amount made by each cohort.

Economy of New South Wales and fiscal position and outlook of the Government

10. The proposed new Award covers a workforce of approximately 3700 permanent firefighters and 3200 retained firefighters (as at 30 June 2025).

11. I understand that the proposed amendments to cl 11.4 of the new Award would result in an increased additional annual cost of approximately $229,000 for retained firefighters' off duty benefits. There is no expected impact on the cost of permanent firefighters' off duty benefits as these benefits already apply the same level of benefit multiples as those set out in cl 11.3 of the Award.

12. Given the relatively low additional increased cost of the proposed new Award, it is not expected that the making of the proposed new Award will have an adverse effect on the state of the economy of New South Wales or the fiscal position and outlook of the NSW Government.

13. Further, to the best of my knowledge, information and belief, the terms of the proposed new Award were approved by the NSW Government after taking into account the NSW economy, the fiscal position and outlook of the Government and the likely effect of the creation of the proposed new Award on the NSW economy, fiscal position and outlook."

1. I consider that the requirements of s 10 and 23 of the IR Act are satisfied based on:

(1) the 2024 D&D Award continuing the terms of the 2023 D&D Award, save for the amendments identified which objectively improve the conditions of employment for retained firefighters;

(2) all parties consenting to the Award, notably after protracted negotiations; and

(3) the evidence of Ms Johnstone that the Award provides equal remuneration and other conditions of employment for men and women.

1. I consider that the requirements of s 11 of the IR Act are satisfied based on:

(1) the application having been made by an employer; and

(2) each of the parties to these proceedings (and to the 2024 D&D Award) having a sufficient interest in the 2024 D& D Award because they have either members who will be covered by the Award, or is the employer of employees to be covered by the Award.

1. I consider that the requirements of s 13 of the IR Act are satisfied based on:

(1) the 2024 D&D Award being in writing and expressed to be an award;

(2) that it will be signed by a member of the Commission in due course and published by the Industrial Registrar; and

(3) the 2024 D&D Award otherwise apparently complying with the requirements as to form and procedure for its making, as set out in the regulations and rules of the Commission.

1. I consider that the requirements of s 14 are satisfied based on the 2024 D&D Award containing a "Grievance Mechanism" in cl 15 which provides that if an issue gives rise to a dispute it shall be dealt with in accordance with the Dispute Procedure in clause 11 of the Permanent Award, which includes procedures for discussion (consultation) at the workplace and the involvement of the relevant industrial organisations.
2. I am satisfied that the 2024 D&D Award can apply retrospectively (from 1 July 2024) because the Award is consented to and the Award will set conditions of employment for employees of a single employer: s 15(4)(b), IR Act.
3. The requirements of s 16 are satisfied as the nominal term of the Award is three years.
4. I consider that it is in the public interest to make the 2024 D&D Award. In arriving at this decision I have taken into account the objects of the IR Act, as set out in s 3, and in particular those matters referred to at paragraph 9 of Ms Johnstone's affidavit.
5. I have also considered the matters identified as requiring consideration in s 146(2)(b) and (c) of the IR Act, namely, the likely effect of the decision to make the 2024 D&D Award on the economy of New South Wales and the fiscal position and outlook of the Government and the likely effect of the making of the 2024 D&D Award on the position and outlook. On the basis of the evidence of Ms Johnstone that the increased additional annual cost arising from the amendment to cl 11.4 will be approximately $229,000 I consider that the making of the 2024 D&D Award will have a negligible impact on the economy and the fiscal position and outlook of the Government.
6. In deciding it is in the public interest to make the 2024 D&D Award I have also had due regard to the fact that the parties consent to it. While I consider it unfortunate that it took so long for the parties to reach a consent position in respect of this Award, particularly where, as recorded in the PD at [668], the need to amend cl 11.4 had been known at the time the 2023 D&D Award was made, I do congratulate the parties on finally reaching agreement without the need for a hearing.
7. For these reasons, I have decided it is appropriate to order the making of the 2024 D&D Award in the terms sought in the application filed on 26 February 2026 in proceedings no. 2024/68974 and 2024/301376 and to rescind the 2023 D&D Award.

(1) By consent, pursuant to s 10 of the Industrial Relations Act 1996, the Crown Employees (Fire and Rescue NSW Firefighting Staff Death and Disability) Award 2024 is made in the terms set out in Schedule A to the application filed on 26 February 2026 in proceeding no. 2024/68974 and 2024/301376, with effect from 1 July 2024.

(2) By consent, pursuant to s 17 of the Industrial Relations Act 1996, the Crown Employees (Fire and Rescue NSW Firefighting Staff Death and Disability) Award 2023 is rescinded.

(3) Proceedings no. 2024/68974 and 2024/301376 are otherwise dismissed.

[1] Which apply to the present applications as they were made and the hearing of them had commenced, prior to the commencement of the 2025 - 2026 Award Making Principles as made in State Wage Case 2025 (No 3) [2025] NSWIRComm 36: 2025 - 2026 Award Making Principles, Principle 16.1.

[2] Fire Brigade Employees' Union v Industrial Relations Secretary (on behalf of Fire and Rescue NSW) [2025] NSWIRComm 1063 at [663] - [664].