Re: Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2011 [2014] NSWIRComm 38

Judgment 1This matter concerns an application by the Fire Brigades Employees' Union of New South Wales ("FBEU" or "applicant") to vary the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2011 ("2011 Award"). Essentially, the application seeks an increase of 2.27 per cent in wages and allowances to be paid retrospectively from 21 February 2014. 2Before dealing with the application itself, some background is necessary. That background is neatly summarised in the submissions of Fire and Rescue NSW ("FRNSW" or "respondent"): On 21 February 2014, the FBEU made an application for a new award entitled the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2014 ("the 2014 Award Application"). That application is currently before Justice Walton and the parties are participating in a conciliation process facilitated by His Honour. Save for a brief reference by Mr Read on 13 June 2014, the FBEU has not made any application for an interim award wage increase in the 2014 Award Application. On 4 April 2014 the FBEU made an application for a new award entitled the Crown Employees (Fire & Rescue NSW Firefighting Staff Death & Disability) Award 2014 ("the 2014 D&D Award Application"). That application is also before Justice Walton and is 'travelling with' the 2014 Award Application. The FBEU has not made any application for an interim variation or award in the 2014 D&D Award Application. On 6 June 2014 and again on 13 June 2014, the 2014 Award Application was listed before Acting President Boland at the request of the FBEU because of a concern in relation to interim wage increases. On 13 June 2014 Acting President Boland indicated his preparedness to relist the 2014 Award Application "as a matter of urgency". On 18 June 2014 the FBEU filed a separate application to vary the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2011 ("the 2011 Award"). On 23 June 2014 FRNSW obtained approval to pay a 2.27% wage increase for relevant employees and has accordingly done so. This increase was backdated to 21 February 2014. 3Turning to the application, whilst the 2.27 per cent increase has already been passed on to firefighting staff by administrative action, the FBEU is concerned that the 2011 Award be varied. It is that Award that fixes salary levels for the purposes of the Crown Employees (Fire and Rescue NSW Firefighting Staff Death and Disability) Award 2012 ("Death and Disability Award"). In turn, the NSW Fire Death and Disability Super Fund ("the Fund") refers to the Death and Disability Award for the purpose of determining contributions. According to the evidence of Mr Chris Read, Senior Industrial Officer for the applicant and Director of NSW Fire Brigades Superannuation Pty Limited, the corporate trustee of the Fund, the Fund cannot accept contributions other than those prescribed by the Death and Disability Award. 4The effect of this situation was described by Mr Read: I am aware of at least two former permanent firefighters who have been assessed as suffering on-duty total and permanently incapacity since 20 February 2014and who are now in receipt of a pension from the Fund. These TPI firefighters are receiving a lesser pension than would be the case if the 2011 Award was varied in accordance with the Union's application, and they will continue to receive a lesser pension unless and until the 2011 Award is so varied. I am aware of numerous other claims that are currently before the Fund which if approved, will result in lesser pensions for those TPI firefighters as well. 5The FBEU submitted: Failure to vary the 2011 Award will also result in permanent firefighters who suffer an on duty death or total and permanent incapacity receiving a lesser pension from the Fund than would otherwise be the case. Clause 7.3.2 of the Death and Disability Award provides how such a pension is to be calculated, and includes the salary as defined in that award, which itself refers back to the 2011 Award. The pension is paid by the Fund, which is required to operate in accordance with the terms of the trust deed by which it was created. There is no capacity for the Fund to pay benefits other than in accordance with the trust deed, or it follows, the salaries as set out within the 2011 Award. 6The respondent opposed the application. The bases of its opposition are: a. In the present matter it is contrary to the public interest to vary the 2011 Award as sought because of the consequent effect upon the 2014 Award Application; b. In the present matter there is no substantial reason to grant the variation sought; c. The application should be joined with the main Award matter, IRC123 of 2014, so that the application can be considered in the context of the 2014 Award Application; d. (in the alternate) The Commission should not grant the interim increase as sought because to do so will materially affect the 2014 Award Application before the Commission; e. (in the alternate) The Commission cannot grant the increase with retrospective operation as sought, because there are no exceptional circumstances at all or, in the further alternate, there are not sufficient exceptional circumstances to justify what is in the context of the statutory scheme an exceptional outcome; f. If the Commission is prepared to grant the application sought with retrospective operation, the increases sought can only be applicable from 18 June 2014, being the date that the present application was lodged with the Industrial Registrar; and g. If an increase is granted, the Commission must ensure that, in making or varying any award or order, the resultant award is not silent in respect of No Extra Claims and as such an award cannot be made without some form of No Extra Claims clause being included.