Crown Employees (NSW Fire Brigade Retained Firefighting Staff) Award 2008 (No 3) [2013] NSWIRComm 52

Judgment 1On 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. 2At [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. 3The 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. 4It 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.