Consideration
48The 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?
49In 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.
50As I have already noted, cl 35 of the 2008 Award provided leave reserved to the FBEU to bring such a claim.
51The 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.
...
52The reference to "relevant provisions of the Act", in Principle 8.1 encompasses s 3, s 10 and s 146(2) of the Act.
53The 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.
54In 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.
55FRNSW 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".
56The 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.
57In 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.
58The duties of a retained firefighter include attending upon fires and responding to calls for emergency assistance. Retained firefighters have basic first aid skills.
59The 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.
60In 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.
61It 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.
62This 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.
63The 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.
64The 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.
65The 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.
66In 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.
67Furthermore, 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.
68The 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.
69To 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.
70In 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.
71I 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.
72The 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.
73The 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.
74FRNSW 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.
75From a work value viewpoint, CFR duties must be recognised as a work value improvement to the existing work of retained firefighters.
76The 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.
77The 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").
78In 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.
79If 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.
80Furthermore, 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.
81In 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.
82In 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.
83Similarly, 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.