Industrial Relations Commission New South Wales Medium Neutral Citation: Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2023 – Award Variation [2025] NSWIRComm 1003 Hearing dates: Matter determined in chambers Date of orders: 15 January 2025 Decision date: 15 January 2025 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: (1) Pursuant to s 17 of the Industrial Relations Act 1996 (NSW), the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2023 is varied by consent in the terms set out in Schedule A to the Short Minutes of Order filed with the application on 13 December 2024 and signed by both parties, a copy of which is annexed to this decision, to provide for the following outcomes: (a) an increase to salaries and salary-related allowances in the Award of 3.0% from the first full pay period on or after 26 February 2024; and (b) an increase to the meal allowance and refreshment allowance from 1 July 2024 to remain consistent with Australian Taxation Office guidance as to the quantum of such allowances each financial year. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation by consent Legislation Cited: Fire and Rescue NSW Act 1989 (NSW), s 70 Industrial Relations Act 1996 (NSW), ss 15, 17, 146(2)(c) Texts Cited: Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2023 Category: Principal judgment Parties: Industrial Relations Secretary (on behalf of Fire and Rescue NSW) (Applicant) Fire Brigade Employee's Union of New South Wales (Respondent) Representation: Solicitors: Crown Solicitor for NSW (Applicant) Hall Payne Lawyers (Respondent) File Number(s): 2024/00466506 Publication restriction: None DECISION 1. This decision concerns an application filed on 13 December 2024 by the Industrial Relations Secretary, on behalf of Fire and Rescue NSW, to vary the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2023, to provide for an increase of 3% to salaries and salary-related allowances in the Award, as well as an increase to the meal allowance and refreshment allowance from 1 July 2024 to remain consistent with Australian Taxation Office guidance as to the quantum of such allowances each financial year. 2. The parties to the Award are: 1. the Industrial Relations Secretary, the deemed employer of employees covered by the Award pursuant to s 70 of the Fire and Rescue NSW Act 1989 (NSW); and 2. the Fire Brigade Employee's Union of New South Wales. Background 1. The Award applies to all employees employed in a retained firefighter classification as defined in the Award, employed by Fire and Rescue New South Wales. 2. The nominal term of the Award ended on 25 February 2024. From at least the beginning of 2024 the parties have been in negotiations as to the terms of a proposed new Award, as well at a new award with respect to permanent firefighters and new awards for both groups of employees with respect to their respective death and disability awards. Both parties have filed applications for new awards and have engaged in protracted conciliation, however no resolution has been reached. The applications have now been set down for an arbitrated hearing before the Full Bench on 11 – 21 February 2025. 3. As Sue Huang, Director Industrial Relations, Fire and Rescue New South Wales, deposed in her affidavit affirmed on 9 December 2024 and filed in support of the variation application: "The proposed variation to the Award gives effect to an increase to salaries and salary-related allowances of 3% for all employees covered by the Award from 26 February 2024. These increases are provided by way of an interim increase, whilst the balance of the parties' award claims are being arbitrated by the Industrial Relations Commission (IRC 2024/68961, 68974, 68974 (sic), 301414, 301353, 301376). The proposed variation to the Award also provides an increase to the meal allowance and the refreshment allowance from 1 July 2024 consistent with the Australian Taxation Office guidance on the quantum of such allowances in each financial year." The Variation Application 1. Section 17 of the Industrial Relations Act 1996 (NSW) provides: 17 Variation or rescission of award (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 both acknowledge that the balance of the parties' award claims, including the Respondent's claims for salaries and salary-related allowances to be increased by more than 3% from 26 February 2024, will be arbitrated by the Commission. 2. As already referred to, in support of the application the Industrial Relations Secretary filed an affidavit affirmed by Ms Huang. 3. Ms Huang opines that the varied Award provides equal remuneration and other conditions of employment for men and women doing work of equal or comparable value. Ms Huang 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 firefighters in circumstances where they have not received a pay increase since 26 February 2023; and c. the increase to salary and salary-related allowances contained in the proposed variation have been budgeted for by the NSW Government. 1. The last matter referred to – 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. In this regard Ms Huang further deposed: "On 19 May 2024, the NSW Government announced its wage increase offer to the public service of New South Wales, which included a sector-wide proposed increase to the baseline remuneration of staff in percentage terms for a term of three years (NSW Government Offer). The NSW Government Offer was budgeted for in 2023 as part of the Essential Services Fund. The Essential Services Fund is a fund which will support long-term growth in pay for front line workers, including firefighters. The interim pay increase provided for by this variation is consistent with the NSW Government Offer. 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. I am satisfied in light of that evidence that it is not inconsistent with the Government's fiscal position to make the proposed variation to the Award and that the variation sets fair and reasonable conditions of employment. 2. Pursuant to s 17(2), s 15 of the Industrial Relations 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 to apply from 26 February 2024 in respect of the increases to salaries and salary-related allowances, and from 1 July 2024 in respect of the increases to the meal allowance and refreshment allowance. 2. 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 variation in respect to meal and refreshment allowances in line with Australian Taxation Office guidance and where the variation is not inconsistent with the Government's fiscal position, I am satisfied that it is in the public interest to vary the Award in the manner sought by the application. 3. As the consent application is to vary the existing Award, the name of the Award, including the year 2023, will remain unchanged. Orders and Directions 1. I order that: 1. Pursuant to s 17 of the Industrial Relations Act 1996 (NSW), the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2023 is varied by consent in the terms set out in Schedule A to the Short Minutes of Order filed with the application on 13 December 2024 and signed by both parties, a copy of which is annexed to this decision, to provide for the following outcomes: 1. an increase to salaries and salary-related allowances in the Award of 3.0% from the first full pay period on or after 26 February 2024; and 2. an increase to the meal allowance and refreshment allowance from 1 July 2024 to remain consistent with Australian Taxation Office guidance as to the quantum of such allowances each financial year. Janet McDonald Commissioner ********** Schedule A (291945, rtf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 January 2025