Crown Employees (NSW Fire Brigades Permanent Firefighting Staff) Award 2008 and another [2008] NSWIRComm 174

CATCHWORDS: Award - Applications for new enterprise awards for permanent and retained firefighters - Salary and other variations sought - Government wages policy - Counter claims - Claims for cost offsets and improvements in efficiency made by Fire Brigades - Bluescope model - Recommendations made - Awards made and reviewed

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Re Operational Ambulance Officers (State) Award and others [2008] NSWIRComm 168 State Wage Case 2008 [2008] NSWIRComm 122

HEARING DATES: 25/8/08, 26/8/08, 27/8/08, 28/8/08, 29/8/08, 1/9/08, 2/09/08, 3/09/08, 16/09/08, 19/9/08 EXTEMPORE JUDGMENT DATE: 19 September 2008

APPLICANT Mr J Nolan of counsel Mr C Reid, New South Wales Fire Brigades Employees' Union LEGAL REPRESENTATIVES: RESPONDENT Mr P Kite SC with Mr A Britt of counsel Ms C Ludlow, NSW Crown Solicitor's Office for New South Wales Fire Brigades

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: WALTON J, Vice-President KAVANAGH J GRAYSON DP

CROWN EMPLOYEES (NSW FIRE BRIGADES PERMANENT FIREFIGHTING STAFF) AWARD 2008

Application by New South Wales Fire Brigade Employees' Union for a new award

CROWN EMPLOYEES (NSW FIRE BRIGADES FIREFIGHTING STAFF) AWARD 2005

Notice of award review pursuant to section 19 of the Industrial Relations Act 1996

CROWN EMPLOYEES (NSW FIRE BRIGADES RETAINED FIREFIGHTING STAFF) AWARD 2005

Notice of award review pursuant to section 19 of the Industrial Relations Act 1996

NOTIFICATION UNDER SECTION 130 BY NEW SOUTH WALES FIRE BRIGADES ON BEHALF OF THE DIRECTOR OF PUBLIC EMPLOYMENT OF A DISPUTE WITH NEW SOUTH WALES FIRE BRIGADE EMPLOYEES' UNION RE STOP WORK MEETING

DECISION OF THE COMMISSION EX TEMPORE [2008] NSWIRComm 174

1 By applications filed on 21 February 2008, the New South Wales Fire Brigades Employees' Union sought the making of two new enterprise awards which would replace two existing awards known as the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2005 and the Crown Employees (NSW Fire Brigades Retained Firefighting Staff) Award 2005 ("the 2005 awards"). 2 Those applications were subsequently amended by leave of the Commission and, on 11 April 2008, the Director of Public Employment on behalf of the New South Wales Fire Brigades filed counter award applications again seeking the making of new awards but in a different form as to rates and conditions in certain significant respects to those proposed in the Union's amended applications. 3 The 2005 awards were varied on 14 February 2008 by orders made by Kavanagh J in the dispute proceedings in Matter No IRC 85 of 2008. Those orders resulted in the making of two interim awards, each having the effect of adjusting the rates of pay in the 2005 awards by 2.5 percent. The interim awards operated from 24 February 2008. 4 In all, the amended applications and counter applications brought with them a substantial number of claims and counter claims, each heard as referred proceedings under the Special Case principle of the State Wage Case 2008 [2008] NSWIRComm 122. It may be further observed that the proceedings went forward against a background of an announcement by the New South Wales government of the Public Sector Wages Policy 2007. Having regard to those considerations, the proceedings were dealt with by the application of a procedure or methodology now known as the 'Bluescope Model'. We do not detail that process, as it is adequately described in the recent decision of a Full Bench of the Commission in Re Operational Ambulance Officers (State) Award and others [2008] NSWIRComm 168. The entirety of the proceedings were concluded (in terms of determinations as to the relevant issues) within the eight days the matters were listed for hearing.

5 The parties produced two new draft awards reflecting the outcome of agreements or recommendations made during the course of that process together with any adjustments arising from the related proceedings under s 19 of the Industrial Relations Act 1996. The first is to be known as the Crown Employees (NSW Fire Brigades Permanent Firefighting Staff) Award 2008, the terms of which are contained in exhibit 26 in the proceedings. The second award is to be known as the Crown Employees (NSW Fire Brigades Retained Firefighting Staff) Award 2008, in terms of exhibit 27 (as amended by exhibit 28 and the ruling of the Full Bench in relation to that document). 6 We do not propose in this decision to outline in detail the large number of recommendations which we made during the course of the hearing. It is sufficient for present purposes to refer to the wage adjustments we recommended, together with a record of changes to award and non-award matters, resulting in cost savings or other efficiencies. We shall also make some brief observations as to some of the matters that we have dealt with for the purposes of clarity. 7 The increases in salaries recommended are a reflection of the fact that the Union made out a special case. This conclusion also included a recognition that there had been changes in work value demonstrated which were sufficient to register attention under the wage fixing principles, but which may be described as 'modest'. The salary increases also represent the quite substantial improvements in efficiencies and cost outcomes which were agreed or recommended. The Commission recommended an adjustment over three approximate year periods consisting in the first part of a 4.6 percent adjustment to salaries then followed by two successive 4 percent adjustments. The operative dates for those variations are reflected in the proposed awards. The award and non-award matters, cost offsets or efficiencies and like improvements recommended or agreed are reflected in the attached document (which is the amended version of exhibit 30). 8 As we have mentioned, it is appropriate to make some points in clarification as to some of the areas attended to during the course of the proceedings. These are set out in summary form below. 1. Sick Leave ● The costings for this item are based on an agreed reduction to an average of 87 hours per permanent fire fighter per year. ● The policy is agreed in content and will be implemented with making of the award. ● Overtime savings have been a major contributor to the salary increases awarded. 2. Water Tankers The salary increase associated with the implementation of Water Tankers is awarded on the basis of the drafted In-Order submitted during proceedings and the agreement of the parties to implement the change immediately following conclusion of proceedings. 3. Not back filling vacancies at 32 Retained Stations and Bravo Units state-wide when falling below minimum crewing The salary increase associated with the implementation of the back filling is awarded on the basis of the drafted In-Order submitted during proceedings and the determination by the Commission that the proposal is reasonable, including the recognition by the NSW Fire Brigades of costs savings thus effected being taken into account in the salary increases proposed. 4. Operational Support / Executive Officers Arrangements The parties have agreed to a number of changes as part of an overall arrangement as detailed below: ● Deletion of Operational Support Levels 4 & 5, and reversion of the position holders to their substantive ranks (Superintendents and Chief Superintendents respectively). ● 'Grandfathering' of Operational Support Level 4 (for current position holders as at day prior to commencement of new award) by maintenance of the payment to them of the current salary differential (without indexation) until they are promoted or leave the service. ● Part C Executive Officers to be rolled back into Part B - the main part of award. The NSW Fire Brigade Employees' Union undertakes that there will be no unintended consequences. ● It is acknowledged that there is no claim to on-call allowance for Executive Officers (past or future). ● Operational Support position holders are no longer required to spend 2 months at a fire station for promotion/progression purposes under Clause 13. ● An additional weeks' leave for Executive Officers (increase from 4 to 5 weeks). ● Increase in Inspectors relativity (to Qualified Firefighters) to 150%. ● The parties are to adopt the NSW Fire Brigades' proposed clause re cleaning of clothes (Clause 33 of NSW Fire Brigades' counter application). It is agreed by the parties that these arrangements are cost neutral and there will be no costs savings claimed by either party. 5. Electronic Timesheets The parties have agreed this is an efficiency, the value of which has been included in the wages award. The parties have agreed to implement the change immediately following conclusion of proceedings. 6. Sunsetting Allowance The Full Bench determined that while the union's application that the sunsetting allowances be reinserted into the award was declined, the turntable ladders qualifications and rescue monitor (SIM) allowances will be indexed in line with any wage increases from the date of operation of this award (but not in respect of wage increases prior). The allowances will only apply to those who are still in receipt of these allowances as at the making of this award.

9 In all of these circumstances, we consider that the proposed awards in exhibits 26 and 27 (as amended) satisfy all the statutory requirements for making of awards, comply with the Wage Fixing principles and have an abundance of industrial merit. We intend to approve them, but in doing so also note that the awards exhaust work value considerations up to the commencement date of the award and have been reviewed for the purposes of s 19 of the Act. We also note the undertakings given by the Union.

10 We make the following awards: 1. Crown Employees (NSW Fire Brigades Permanent Firefighting Staff) Award 2008 in terms of exhibit 26, subject to a settlement of the Minutes before Kavanagh J at 9.30 am Monday 22 September 2008; and 2. Crown Employees (NSW Fire Brigades Retained Firefighting Staff) Award 2008 in terms of exhibit 27 as amended (the final form of that award shall be produced to Kavanagh J at the time of the settling of the Minutes in relation to exhibit 26).

11 The awards shall commence on and from 18 June 2008 and shall operate until 17 June 2011.

12 On 23 September 2008, Kavanagh J settled the terms of the abovementioned awards and, accordingly, made two new awards known as the 'Crown Employees (NSW Fire Brigades Permanent Firefighting Staff) Award 2008' and the 'Crown Employees (NSW Fire Brigades Retained Firefighting Staff) Award 2008'. The terms of those awards are contained in a folder entitled 'Final Awards' (being the Final Version of the awards of 22 September 2008).

13 We also note that Kavanagh J made further Recommendations in relation to these matters (and a further dispute Matter No IRC 1791 of 2008) dated 20, 22 and 23 September 2008. One of those Recommendations resolved a question as to the date of operation of salary increases (the date of operation of the first pay increase being the first full pay period on or after 18 June 2008 with the adjustment being made by administrative action).

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