Crown Employees (Fire and Rescue NSW Tradespersons) Award 2022 �e" Award Variation [2025] NSWIRComm 1021 (13 May 2025)

1. The Award applies to tradespersons employed by Fire and Rescue NSW in various classifications as set out in Part B, Table 1 of the Award.
2. The nominal term of the Award ended on 2 July 2024. The parties have been in negotiations as to the terms of a proposed new Award for some time. On 28 June 2024 the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (AMWU) filed a Notification of an Industrial Dispute pursuant to s 130 of the Industrial Relations Act 1996 (IR Act) in respect of its unresolved log of claims (case no. 2024/00238512). Those claims include a claim for remuneration increases totalling 27% over three years, as well as other matters. On 16 September 2024 the Industrial Relations Secretary (being the employer of the relevant employees for industrial purposes pursuant to s 66 of Fire and Rescue NSW Act 1989 and the Government Sector Employment Act 2013), filed an application for a new award pursuant to s 10 of the IR Act (case no. 2024/00342301). The proposed new Award would see remuneration increased by 9% over three years.
3. Since the fling of the dispute in June last year the parties have engaged in protracted conciliation before me, which has resulted in the parties reaching agreement in respect of some matters, but not all. In particular, the parties remain in dispute in respect of the quantum of remuneration, the payment of a so-called 'test and tag' allowance, classifications, the rates of pay of apprentices and some other matters.
4. To enable the parties to enjoy the benefits of those matters which had been agreed, without further delay, the parties agreed that a consent application should be made to vary the 2022 Award, on the basis that the application would be without prejudice to the parties' position in case nos. 2024/00342301 and 2024/00238512 and would not preclude the Commission from determining the balance of the parties' claims in those matters.
5. While the dispute was only notified by the AMWU, the other union parties to the Award support the AMWU's claim.
6. The application for variation of the Award came before me for directions on 14 March 2025. On that day I raised a number of issues with the application, the evidence filed in support of the application and the proposed variations to the Award. After discussing my concerns at some length, I directed the Industrial Relations Secretary to file and serve an amended application for variation, annexing revised versions of the proposed varied award in mark-up and without mark-up, and a further affidavit in support of that application, by 28 March 2025. That material was duly filed and served on that day, together with proposed Short Minutes of Order, signed on behalf of the solicitor for the Industrial Relations Secretary and by the Assistant State Secretary of the AMWU.
7. During the course of preparing this decision I noticed that no variation was proposed to cl 48 of the Award - 'Area, Incidence and Duration' - with the consequence that the proposed increases in salaries and salary-related allowances, as listed in Part B of the Award, were not properly effected. I also noticed a typographical error in cl 48.1, which appears to have been in the original version of the Award which commenced operation on 3 July 2022. Lastly, while the materials filed made it plain that the agreed increases to remuneration were to apply from 1 July 2024, they did not make clear the date from which the other variations to the Award were to apply. Consequently, on 22 April 2025 the Commission wrote to the parties advising of these issues and of the following directions which I had made in chambers:

1. The parties are directed to reply to the Commission's letter of 22 April 2025, and if required, the Industrial Relations Secretary is to file and serve a Further Amended Application, by 10am on Thursday 24 April 2025.

2. The AMWU is to confirm that for the purposes of the present application it represents the other parties to the Award, namely the Electrical Trades Union of Australia, New South Wales Branch, the Fire Brigade Employee's Union of New South Wales and the Construction, Forestry, Mining and Energy Union (New South Wales Branch).

1. On 24 April 2025 the parties requested and were granted, an extension of time to 10am on 30 April 2025 for the Industrial Relations Secretary to file and serve a Further Amended Application.
2. On 30 April 2025 the Industrial Relations Secretary filed a Further Amended Application attaching revised versions of Schedules A and B. Schedule A is a clean copy of the proposed varied Award and Schedule B is a marked-up copy of the proposed varied Award. The further revisions were minor but important amendments to cl 48, which did not affect the evidence that had otherwise been filed earlier by the Secretary in support of the application for variation. The Secretary also filed revised Short Minutes of Order to be made by consent, which had been signed on behalf of the Secretary and the AMWU.
3. While the AMWU advised that they were not representing the other respondent Unions in this proceeding, on 2 May 2025 the AMWU submitted signed copies of the Short Minutes of Order that had been signed by a representative of the Second Respondent, the Electrical Trades Union of Australia, New South Wales Branch, and by a representative of the Fourth Respondent, the Construction, Forestry, Mining and Energy Union (New South Wales Branch). On 12 May 2025 the Commission received written correspondence from a representative of the Third Respondent, the Fire Brigade Employees' Union of New South Wales, confirming that that Union also consented to the making of the variation.

(1) The Commission may vary or rescind an award.

(2) Sections 11, 13 and 15 apply to any such variation or rescission. The other provisions of this Division continue to apply to the award as varied.

(3) An award may be varied or rescinded in any of the following circumstances only -

(a) at any time with the mutual consent of all the parties to the making of the original award,

(b) at any time to give effect to a decision of the Full Bench of the Commission under section 50 or 51 (National and State decisions),

(c) during its nominal term if the Commission considers that it is not contrary to the public interest to do so and that there is a substantial reason to do so,

(d) after its nominal term if the Commission considers that it is not contrary to the public interest to do so.

(4) This section extends to a variation or rescission of an award in the course of an arbitration by the Commission under Chapter 3 to resolve an industrial dispute.

1. In satisfaction of s 17(3)(a), the parties to the Award have consented to the application. It is important to note that the parties' consent is given in circumstances where they expressly acknowledge that the balance of the parties' award claims, including the claims for salaries and salary-related allowances to be increased by more than 3% from 1 July 2024, will be arbitrated by the Commission.
2. In support of the amended application the Industrial Relations Secretary filed an affidavit affirmed by Lisa Marie Johnstone, Manager Industrial Relations Strategy, Fire and Rescue New South Wales, on 28 March 2025.
3. The agreed Short Minutes of Order proposes that the Commission make the following notation:

A. This matter relates to the following proceedings, which are ongoing:

i. 2024/00342301 - Crown Employees (Fire and Rescue NSW Tradespersons) Award 2024 application; and

ii. 2024/00238512 - s 130 dispute relating to the above award.

B. The Amended Application is without prejudice to the parties' positions in the matters referred to above at [A] and does not preclude the Commission from determining the balance of the parties' claims in these matters.

"The proposed varied Award gives effect to an increase to salaries and salary-related allowances of 3% for all employees covered by the Award from 1 July 2024. These increases are provided by way of an interim increase, whilst the balance of the parties' award claims are being determined (either through negotiation or arbitration)."

And

"The above rates are in addition to any increase to the compulsory rate of superannuation."

1. Ms Johnstone opines that the varied Award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value because:

"a. The increases to salaries and salary related allowances affect all classifications under the proposed varied Award equally.

b. No distinction is drawn on the basis of gender between the remuneration and conditions of employment which apply; and

c. There are no cohorts of employees under the proposed varied Awards who would be unequally remunerated for work of equal or comparable value."

1. On the basis of Ms Johnstone's uncontested evidence I am satisfied that the proposed varied Award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value.
2. Ms Johnstone also opines that the proposed variation to the Award is in the public interest on the following bases:

"a. the proposed variation to the Award has been negotiated between the parties and is sought by consent;

b. the proposed variation to the Award provides for interim pay increases to employees in circumstances where they have not received a pay increase since 1 July 2023;

c. the increase to salary and salary-related allowances contained in the proposed varied Award are consistent with the Memorandum of Understanding entered into between the applicant and respondents on 6 December 2024, which is annexed hereto and marked with the letter "A"; and

d. the interim pay increase provided for by this variation is consistent with the NSW Government Offer, in that it facilities the base increase budgeted for the 2024-25 financial year in the NSW Budget 2024-25. Therefore, to the best of my knowledge and belief, the fiscal position and outlook of the Government and the likely effect of the increase to salary and salary-related allowances on the position and outlook have been considered by Government."

1. The Memorandum of Understanding referred to by Ms Johnstone constitutes an agreement between Fire and Rescue NSW and the AMWU that salaries and salary related allowances payable under the Award will be increased by 3% "on an interim basis from the first full pay period on or after 1 July 2024", that there will be no amendment to the existing "No Extra Claims" clause in the Award and:

"The unions will not support, encourage, direct or incite members to take any industrial action related to the award claims while the matter is subject to proceedings in the NSW Industrial Relations Commission (IRC), including the arbitration of the matter."

1. The last matter referred to by Ms Johnstone - that is, that the increases have been budgeted for by the NSW Government - is a matter that bears upon my approval of the proposed variation as the employees covered by the Award are public sector employees. Consequently, pursuant to s 146(2)(c) of the IR Act, I am obliged to have regard to the fiscal position and outlook of the Government and the likely effect of the exercise of the Commission's function on the position and outlook. The interim pay increase provided for by this variation has been included in the 2024/25 budget. I am therefore satisfied that it is not inconsistent with the Government's fiscal position to increase salaries and salary-related allowances as proposed.

1. As Ms Johnstone explained in her affidavit, other variations are to be made to the Award by consent. Those amendments may be summarised as follows:

(1) amendment to cl 11 to remove the requirement to undertake 120 hours of approved courses for employees to progress through the Fire Vehicle Repairer classification;

(2) the insertion of a cl 35a, confirming that employees have rights with respect to Work Health and Safety which arise under the Work Health and Safety Act 2011 and Fire & Rescue NSW internal policies;

(3) the insertion of cl 35b, which formalises the provision by Fire and Rescue NSW to employees of uniforms and personal protective equipment;

(4) the insertion of cl 37a, which recognises the obligation of Fire and Rescue NSW to consult with employees regarding major change that significantly affects employees, the provisions of the Award and/or the employment relationship;

(5) the insertion of cl 42a, which provides for domestic and family violence leave for all employees under the Award;

(6) amendment of cl 43, which provides for union rights; and

(7) amendment of cl 44 to govern the engagement of contractors and outsourcing.

1. It was not explained in the evidence whether any of these changes are likely to increase employee related costs in any substantial way, such that they could affect the fiscal position and outlook of the Government, but on their face this seems unlikely.

1. Pursuant to s 17(2), s 15 of the IR Act is applicable to a variation of an award. Section 15 provides:

15 Commencement of award

(1) An award comes into force on the date specified by the Commission.

(2) However, legal proceedings relating to the enforcement of the award cannot be commenced until the expiration of 7 days after the day on which it is published on the NSW industrial relations website.

(3) An award may be expressed to apply retrospectively, but not earlier than the date on which -

(a) application for the award was lodged with the Industrial Registrar, or

(b) the Commission itself initiated proceedings for the award, or

(c) the industrial dispute giving rise to the award was notified to the Commission.

(4) Despite subsection (3), the following awards may, with the consent of the parties to the making of the award, apply retrospectively from a date, specified in the award, that is earlier than any date referred to in that subsection -

(a) an award that sets conditions of employment in connection with a project,

(b) an award that sets conditions of employment for employees of a single employer or for employees of two or more associated employers.

1. Given the variation is made by consent and the Award sets conditions of employment for employees of a single employer, namely the Industrial Relations Secretary on behalf of Fire and Rescue NSW, s 15(4)(b) permits the variation in respect of the increases to salaries and salary-related allowances. to apply from 1 July 2024.
2. Save for the variation to cl 48.1, which corrects a typographical error in the original iteration of the 2022 Award, which is to apply from 3 July 2022, all other variations to the Award are to apply from today.
3. Paying due regard to the fact this is a consent application, providing for an immediate increase to the remuneration of employees pending the resolution of the parties' claims, in circumstances where it is generally acknowledged that Australia is experiencing a 'costs of living crisis'; where the variations are not inconsistent with the Government's fiscal position and which go some way toward addressing the issues raised in the AMWU's log of claims, I am satisfied that it is in the public interest to vary the Award in the manner sought by the application.
4. As the consent application is to vary the existing Award, the name of the Award, including the year 2022, will remain unchanged.

(1) Pursuant to s 17 of the Industrial Relations Act 1996, the Crown Employees (Fire and Rescue NSW Tradespersons) Award 2022 is varied by consent in the terms shown in mark-up in Schedule B to the Further Amended Application filed on 30 April 2025.

(2) The variation to cl 48.1 has effect from 3 July 2022.

(3) The variation to cl 48.5 and Tables 1, 2 and 3 have effect from 1 July 2024.

(4) All other variations to the Award have effect from the date of this order.

(1) This matter relates to the following proceedings, which are ongoing:

(a) 2024/00342301 - Crown Employees (Fire and Rescue NSW Tradespersons) Award 2024 application; and

(b) 2024/00238512 - s 130 dispute relating to the above award.

(2) The parties' consent to the Further Amended Application is without prejudice to the parties' positions in the proceedings referred to above and does not preclude the Commission from the determining the balance of the parties' claims in those proceedings.

13 May 2025 - Amendment made to the coversheet and Order No. (1)