Industrial Relations Commission New South Wales Medium Neutral Citation: NSWFBEU v FRNSW [2011] NSWIRComm 1055 Hearing dates: 13 October 2011 Decision date: 24 November 2011 Before: Ritchie C Decision: Catchwords: Dispute notification filed by FBEU. Dispute between FBEU and FRNSW centred on training provided for officers on Marine 1 and the appropriate dates for the payment of the marine allowance for all purposes to qualifying officers. Issue between the parties as to the units of competency that were required to be completed. Also the operation of the Training Review Committee, OTEN and Maritime NSW. Recommended that the date for payment of the marine allowance was the date that the assessment was carried on the last of the required unit(s) of competency. Legislation Cited: Industrial Relations Act, 1996:Commercial Vessels Act, 1979 Category: Principal judgment Parties: Applicant: New South Wales Fire Brigade Employees Union. Respondent: Fire &Rescue NSW Representation: Ms G lawrence (Applicant) Mr S McMartin, Ms L Lacumin (Respondent) File Number(s): IRC 701of 2011 DECISION Background. 1The New South Wales Fire Brigade Employees Union filed a dispute under section 130 of the Industrial Relations Act, 1996 (the Act) on 4 May 2011. 2The dispute notification stated that Fire & Rescue NSW had failed to pay a significant number of their members a marine allowance which was payable under provisions of an expression of interest and then under the Crown Employees (NSW Fire Brigades Permanent Firefighting Staff) Award 2008 (the Award). 3Conciliation took place on 9 May,23 May, 8 June 2011, 1 August, 10 August and 17 August 2011. On that last date no agreement had been reached and the Commission raised a Notice of Attempted Conciliation and the dispute was set down for hearing on 13 and 14 October 2011. The second hearing date was not required and at the end of proceedings on 13 October the decision was reserved. Case for Applicant 4The applicant union filed an Outline of Submissions and two affidavits. One from the Secretary of the union Mr J Casey and the other from Station Officer C Ross. It also filed a Submissions in Reply. 5In his affidavit Mr Casey stated that prior to his taking up the role of Secretary of the union he was a senior firefighter attached to the Leichhardt station. He stated that he represented the union in discussions with the respondent during negotiations for the introduction of the marine firefighting vessel in December 2006. It was Superintendent Shapter who outlined the proposal for a trial including the training required. Whether a dedicated crew is justified would be part of the trial. Three stations would be involved in the training to man Marine 1 vessel. They were Leichhardt, Balmain and Drummoyne. 6Correspondence from the respondent to the applicant dated 11 July 2007 outlined what was proposed with respect to Expressions of Interest, the Marine Training Programme and the Marine trainers' roster. A Marine Allowance of $43.26 per week was payable for those periods when rostered on duty and participating in the Marine Training Programme. This was accepted by the union in correspondence dated 23 July 2007. 7In February 2008 the union filed an application for a new award including the insertion of the Marine Allowance. Mr Casey attached a copy of his affidavit with respect to the application for this marine allowance outlining the role of Marine 1 and the training involved. It stated that the training was for 12 months commencing in August 2007. Mr Casey also attached an affidavit of Superintendent Stathis (dated 23 July 2008) which was filed in response to Mr Casey's affidavit. 8Superintendent Stathis stated that he took over the responsibility for all matters concerning the management and operation of Marine 1 on 10 December 2007. In his affidavit he stated that approximately 60 personnel were currently undergoing training to operate Marine 1 and that the duration of the training was yet to be determined. At the end of the trial participants would be assessed by NSW Maritime as to their competency in each of the units and if competent would be awarded a restricted coxswain's ticket. 9Mr Casey stated that on 19 September 2009, the Crown Employees (NSW Fire Brigades Permanent Firefighting Staff) 2008 Award was made with an operative date of 20 June 2008. 10Mr Casey stated that in October 2008, he received an email from Superintendent Jurgeit. The Superintendent stated that due to the non requirement of Marine 1 to go outside the heads it was therefore not required to have a coxswain's certificate or for the vessel to be classed as "2C". What was now needed was a general boat license( albeit for a commercial vessel which needed its own set of modules delivered by a recognised training organisation ( RTO) with no requirement to go through the NSW Maritime testing regime. The email went on to state that they were seeking formal confirmation from Maritime NSW with respect to the change. He also stated that he had approached OTEN ( TAFE NSW Western Sydney Institute-Open Training and Education Network) to ask them to formulate a training package that gave the operators a general boat license to operate a commercial vessel. 11In correspondence dated 13 October 2008, Mr Casey responded that the Union was broadly supportive of the proposed new training requirements as long as they are both safe and effective and that firefighters have the option of obtaining their coxswains certificates if they choose. He also stated that the parties should meet and assess the new training program and then place by consent the new programme before the Training Review Committee for approval. If this was acceptable then he proposed to extend the trial of Marine 1 an additional 3 months until 15 January 2009. 12He stated that in May 2010 he wrote to the respondent regarding the payment of the marine allowance after members advised him of experiencing difficulties at the local level. It was the view of the union that some members were not receiving the allowance and that the allowance should be paid for all purposes. The respondent did not believe that the marine allowance was paid for all purposes. It stated among matters that the trial period had been extended from the initial twelve months in 2007 until 30 September 2010 by agreement between the two parties. The allowance would only be paid when the firefighter is rostered on duty and participating in training. A subsequent letter dated 11 October 2010 from the respondent to the union stated that the trial period for Marine 1 had concluded on 30 September 2010. It went on to state that operational firefighters and officers qualified and attached to a designated marine station would receive the marine allowance for all paid leave periods. Post the trial period no marine allowance would be paid to firefighters or officers until they were qualified. 13In correspondence dated 3 December 2010 the respondent replied that it had yet received advice from Maritime NSW re the current operator's requirements for Marine 1 but would place the whole issue of training before the Training Review Committee following the completion of the now extended trial period to15 January 2009. Mr Casey stated that the placing of the issue of training did not happen. 14He also stated that where training for certain qualifications had changed from time to time, there had not been any requirement to undergo the new training to maintain their allowances. 15Station Officer Chris Ross filed an affidavit and was subject to cross examination. Mr Ross chose to be part of the Marine 1 training programme as he was based at Drummoyne Fire Station from February 2005 and from Balmain from January 2010. He completed three units through OTEN and was provided with a transcript dated 19 December 2007. The three subjects were : TDMMF701B : Observe safe working practices and procedures on board a vessel; TDMMF801B; Comply with emergency procedures on board a vessel. TDMMF1101A : Survive at sea in the event of vessel abandonment. He also stated that he completed the following subjects in October 2007 from the respondent: Marine 1 operations/working with other agencies marine 1 Operate pumps. On 10 September 2007 he passed his exam for a General Boat license and, his certificate for Marine Radio Operator VHF certificate of Proficiency on 30 November 2007. The topics TDMMC901B : Manoeuvre a domestic vessel of less than 12 metres in length within inshore limits. TDMMR4301A Assist in mooring and anchor handling activities. were part of the NSWFB Marine Training Program were signed off on his logbook on 20 August,2008. He stated that he had completed all the theory by 8 February 2008 with the remaining activities being practical experience on the boat. He stated that the course structure was divided into two sections with Certificate 1 giving him a Deckhand qualification and Certificate 2 was supposed to allow officers to obtain a Restricted Coxswain certificate. He stated that when he completed the MROVCP exam for Certificate 1, he was informed that he was now a Deckhand. 16It was his understanding that once he had completed the training as set out in the original Marine training Program( theory in February 2008 and practical in August 2008), he would be the skipper on board once he had been assessed by NSW Maritime. He stated that the respondent had advised him and according to the Marine Training Program that he would be issued with a Restricted Coxswain Certificate with a log book. Later he was advised that this would not be occurring as the respondent no longer required officers to hold that certificate. Respondents case. 17The respondent filed affidavits from Mr Stuart McMartin and Superintendent Christopher Shapter. Both were subject to cross examination. 18Mr McMartin stated that he is a Senior Industrial Relations Officer for the respondent. He advised that he became involved with Marine 1 in the earlier 2000's. The respondent wrote to the applicant union on 7 July 2007 outlining draft documents attached to the Marine Training Programme and Expressions of Interest from officers. Agreement on what was to take place was received from the union on 23 July 2007. The 2008 award was made including an allowance for marine allowance to be paid for firefighters and officers who were qualified for and attached to a designated marine station. 19A dispute occurred between the parties in July 2010 as to whether the marine allowance was paid when an officer was on approved leave. The respondent wrote to the union pointing out that the agreement between the parties was still in place and that payment was being made in accordance with this agreement and not the award. That is payment is made, during the trial period ( which had been extended from twelve months in 2007 until 30 September 2010), when the firefighter is on duty and participating in training. Claims for payment for the marine allowance were submitted only manually. 20When the trial period ceased on 30 September 2011, the respondent wrote to the union on 11 October 2010, and advised that the award sub-clause 6.6.14 applied from 1 October 2010. The correspondence stated that applications for the marine allowance would now be processed electronically and that firefighters or officers requiring training to become qualified, would not receive the marine allowance until they are qualified. 21The union rejected the date of qualification being 1 October 2010 and subsequently rejected the qualification date being 22 February 2010 and 1 June 2009. 22In response to the union's claim that any training introduced post 18 June 2008 was a breach of the 2008 award, Mr McMartin rejected the claim stating that the award does not express any specific provisions in relation to the training components associated with Marine 1 but only provides for the allowance to be paid when the officer is deemed qualified and attached to a marine station. He also stated that as a result of the operation of the 2008 award, the Training Review Committee (TRC) power of veto over training issues was taken away and became an advisory committee for the Commissioner of FRNSW. The Commissioner can either accept or reject the advice of the TRC. 23Superintendent Shapter stated in November 2006 he was allocated the project to take over all management of the entire Marine Training Programme. 24He commenced negotiations with NSW Marine regarding the qualifications for the operation of Marine 1.In December 2006, it was agreed between NSW Maritime and FRNSW that the qualification to operate Marine 1 would be a restricted coxswain certificate of competency. Additionally on 12 December 2006, NSW Maritime stated that particular named units of competency would have to be completed by the participants in the Marine Training Programme in order to be deemed competent to operate Marine 1. In addition it was determined that participants would have to achieve additional skills being Marine Radio Operators VHF Certificate of Profiency, Marine 1 Operations and working with other agencies, Marine 1 Operate Pumps, the Marine Occupational Safety Test, the NSW Maritime General Boat Licence and a NSW Maritime medical examination. Certain training would be carried out by OTEN and others delivered by marine trainers who were employees of FRNSW. 25He stated that by agreement between the union and FRNSW on 16 December 2006 a twelve month trial would be established to develop a concept for the operation of Marine 1 and to develop the skills of the firefighters involved in the marine development. 26During the period of November 2006 to August 2007, he stated that he was engaged in developing and managing the Marine Training Programme prior to its commencement. On 6 August 2007 the programme started when he delivered the programme to the three marine stations. Through August and September 2007 participants commenced the programme including a familiarisation ride on Marine 1. The three OTEN "safety at sea " modules( 701B, 801B,and 1101A) were completed in September 2007. 27He stated that in July 2007 he took the training regime for Marine 1 to the Training Review Committee. In December 2007 he handed over the management of Marine 1 and its training programme to Superintendent Peter Stathis but was frequently consulted about ongoing training and negotiations associated with training between December 2007 and September 2009. 28He stated that difficulties arose with FRNSW extending their scope of registration incorporating Quality Education & Support subjects (901B and 4301A) in incorporating these units of competencies. Notwithstanding this ,training continued through September 2007 to August 2008. He believed he was advised in August 2008 that FRNSW were unable to add subjects 901B and 4301A to the scope of registration for FRNSW. He also stated that on 15 August 2008 he was advised by NSW Maritime that subject 4301A was to be replaced by 707C(apply seamanship skills and techniques when operating a small vessel within limits of responsibility of a coxswain). This unit of competency entailed extra work than originally planned. OTEN advised that 901B would be replaced by 907C but would not entail significant extra work. 29He stated that as a result of the inability of QES to add 901B and 4301A to the scope of registration for FRNSW, he between August 2008 and February 2009, negotiated with OTEN to use FRNSW Marine Trainers to deliver the practical and theory training and practical assessment of those extra units of competency 907C and 707C, whilst OTEN would conduct and assess the theory components. OTEN would then sign off and qualify those firefighters in those units of competency. 30Units 907C and 707C theory examinations were to be held in February 2009. Participants still had to submit assignments and complete the practical component. Whilst participants had passed units and obtained their general boat licence they hadn't yet qualified as marine operators as at February 2009. 31He stated that at a meeting with NSW Marine in August 2009, he was advised that NSW Marine no longer issued a restricted coxswain certificate but in line with other emergency services in NSW, the Master of a vessel such as Marine 1 was now required to show competence in maritime skills as listed in Schedule 3 of the Government Gazette number 4 dated 11 January 2008 which also included holding a General Boat Licence. This information was provided to the union on 7 September 2009. 32The "Service Agreement" with OTEN was operative from February 2009 and signed off on 7 April 2009. 33In his affidavit Superintendent Shapter responded to Station Officer Ross's affidavit. It was his view that there had been no undertaking by FRNSW to issue a deckhand qualification in the marine training programme. He also stated that whilst Station Officer may have been in charge of an incident on the harbour he would not have been in charge of Marine 1 as a marine trainer who was qualified as a coxswain would have been in charge of the vessel at all times. 34In response to Mr Casey's affidavit it was the view of Superintendent Shapter that the restricted coxswain certificate was never going to be replaced by a general boat licence. 35On achieving all qualifications required for the schedule 3 exemption, FRNSW issued the firefighter with an ID card, titled : "NSWM Schedule 3 Qualification" in October 2009. Consideration and decision. 36In its filed outline of submissions the applicant union stated that the trial period commenced in 2007 when at that time there was no marine allowance in the award but that an amount of $43.26 per week would be paid when a firefighter worked. No payment was paid when on annual or sick leave etc. The allowance was placed into the 2008 award which took effect on and from 18 June 2008. 37It was the contention of the applicant that a firefighter attached to one of the three designated stations (Drummoyne, Balmain or Leichhardt) is deemed qualified for the purpose of receiving the marine allowance , when they completed the training programme that was agreed upon at the commencement of the trial. Any training introduced subsequently was done in breach of the award and therefore had no impact on what was required for the purpose of paying the allowance. 38The applicant sought Directions from the Commission in the following form: "Firefighters in Group 1 who were attached to a Marine 1 station from 6 August 2007 up to 17 June 2008 should be automatically paid: (a) For the period of 7 August to 16 June 2008 payment of the Marine Allowance per week when on duty; and (b) From 17 June 2008 onwards payment of the Marine Allowance per week for all purposes in accordance with clause 6.6.14. Firefighters is Group 2 who were transferred to a designated Marine Station after 17 June 2008, but before 1 January 2009 and who completed the following: TDMMF701B Observe safe working practices and procedures on board a vessel; TDMMF801B Comply with emergency procedures on board a vessel TDMMF1101A Survive at sea in the event of vessel abandonment TDMMC901B Manoeuvre a domestic vessel of less than 12 metres in length operating within inshore limits TDMMR4301A Assist in mooring and anchor handling activities FRNSW Topic Marine 1 operations/Working with other agencies FRNSW Topic marine 1 Operate pumps Certificate Marine Radio Operator VHF Certificate of Proficiency General Boat License Or who held a Coxswain Certificate and were used by the Department to Maintain minimum staffing on the Marine 1 vessel should be paid the Marine Allowance for all purposes in accordance with sub clause 6.6.13; (a) from the date of completion of the training, with the date to be provided in a statutory declaration, payment of the Marine Allowance per week for all purposes in accordance with sub clause 6.6.14; or (b) In the absence of evidence of any date of completion, they shall be paid in accordance with Group 3. Firefighters in Group 3 who were transferred to a designated Marine Station after 1 January 2009 and who completed the following subjects: TDMMF1107B Survive at sea in the event of vessel abandonment TDMMF1007B Provide elementary first aid TDMMC707C Apply seamanship skills and techniques when operating a small vessel within the limits of responsibility of a Coxswain TDMMC907C Manoeuvre a domestic vessel within the limits of responsibility of a Coxswain TDMME507B Transmit and receive information by marine radio or telephone TDMMF5407A Observe safety and emergency procedures on a coastal vessel TDMMR3007B Operate and carry out basic service checks on small vessel marine propulsion systems General Boat License Or who held a Coxswain Certificate and were used by the Department to maintain minimum staffing on the Marine 1 vessel should automatically be paid from 1 June 2009 onwards the Marine Allowance per week for all purposes in accordance with sub clause 6.6.13, unless they can provide evidence of having achieved the required training sooner that 1 June 2009 (ie QUAD record, logbook etc), in which case payment should be made from the date of completion. The Union seeks a direction that the Marine Training Program be placed before the next Training Review Committee meeting for review and to determine whether the additional units of competency added in Group 3 and in fact appropriate and/or necessary." 39The respondent in its outline of submissions gave a historical background to the development and commencement of the marine 1 training programme which included the agreement between the applicant union and the respondent concerning a payment of an allowance for those training. This allowance was being paid ( on a particular basis), prior to a marine allowance being placed into the award on 18 June 2008. It was their submission that as at that date no participant in the training programme had yet qualified. It was their submission that as a consequence of changes to the required units and the introduction of the training company Open Training and Education Network (OTEN) to carrying out the assessment it was not until 1 June 2009 that officers were qualified and therefore entitled to the marine allowance for all purposes. 40I accept that changes to the required units to be assessed occurred during the triaI. In August 2008 NSW Maritime advised the respondent that unit 4301A was to be replaced by 707C. It was OTEN who brought to the attention of the respondent that 907C was to replace 901B. It was accepted by S/O Ross in cross-examination that OTEN carried out the assessment on subject 907C and 707C in February 2009. It was the view of S/O Ross that the "goal posts" were changed during 2008 which required these units to be assessed. 41It was accepted by the respondent that these new units of competency were not put before the Training Review Committee. 42I accept that the respondent was advised by NSW Maritime in August 2009, that the master of a vessel such as marine 1 was required to show competence in maritime skills as listed in Schedule 3 of the Commercial Vessels Act,1979. 43Schedule 3 was promulgated in the following fashion: SCHEDULE 3 Conditions to Which the Certificates of Competency and Safety manning Exemption is Subject In order for a vessel described in Schedule 1 to be Exempt from the certificate of competency and safety manning requirements specified in Parts 3A and 3B of the Commercial Vessels Act 1979 and the Commercial Vessels (Certificates of Competency and Safety Manning) Regulation 1986 there must be full compliance with EACH of the following conditions; (a) The Master of the vessel must have successfully completed training and assessment approved by NSW maritime in relation to the following: (i) Vessel handling and manoeuvring; (ii) Actions to take in an Emergency; (iii) Actions to take to maintain safety on board; (iv) Use and maintenance of safety equipment; (v) Ropework and seamanship; (vi) First aid (vii) Basic engine operation; and (b) The Master of the vessel must hold a current valid General Boat Licence or Personal Watercraft Licence; This Exemption may be revoked at any time by the Chief Executive of NSW Maritime, the General manager Commercial Vessels and Asset Management or their Delegates. Dated this 4 th day of January 2008. CHRIS OXENBOULD, AO Chief Executive NSW Maritime 44Correspondence from the respondent to the applicant dated 7 September 2009 was sent detailing NSW Maritime's requirements and the perceived benefits pursuant to complying with Schedule 3. 45The applicant broke the participants into three groups with differing dates of qualification based on when they say the participant officers qualified. The Commission was advised that the respondent during discussions with the applicant offered particular dates as to when they believed that the qualification date for all purposes should commence ranging from 1 October 2010 (the day after the trial period ceased) to 1 June 2009. All were rejected by the applicant which resulted in the dispute proceeding to arbitration. 46It is my view that both parties commenced the trial with the best of intentions shown by the agreement reached to pay participants an allowance whilst in training. That the original trial period was extended more than once and that the curriculum changed during the training programme was not the fault of either party but in the case of the curriculum a legal requirement of a third party. It is after all NSW Maritime that provides the advice to outside parties as to what has to be complied with, with respect to units of competency, so as vessels on Sydney Harbour are manned by persons holding the appropriate qualifications in accordance with the Commercial Vessels Act, 1979 and in this case Schedule 3. 47The Crown Employees (NSW Fire Brigades Permanent Firefighting Staff) Award 2008 included a new sub cluse 6.6.14 expressed as : The Marine Allowance set at Item 14 of Table 3 of Part c, per week, for Firefighters and Officers who are qualified for and attached to a designated marine station. The is no definition in the above award with respect to the words "qualified for". 48It is my finding that what is required in competency to be assessed as qualified to receive the marine allowance must come from Maritime NSW. It is that body that is held responsible by the state government to carry out government policy and thereby maintain safety on the water ways of NSW. That during 2008 the requirements in training were varied and unforeseen by both applicant and respondent, and which resulted in further training and assessment by an outside body (OTEN) was just a matter that had to be adhered to, to comply with the law. As expressed earlier in this decision those changes were communicated to the applicant. 49I do not accept the submission of the applicant that failure on the part of the respondent to have those changes put before the training review Committee resulted in a breach of the award. Those changes to the original training curriculum were in my view a requirement rather than an option. I do believe however that the changes should have been provided to the Training Review Committee for information purposes only so as members could keep up to date with the marine training programme. 50In summary it is my finding that the marine allowance should be paid to those officers who have completed all the units of competency as required by Maritime NSW, been assessed by the appropriate body and have successfully passed those units. 51As stated previously both parties have submitted various dates that the allowance should commence being paid for all purposes. It is my Recommendation (in accordance with section 136(1)(a) of the Act) that this date should be the date that the assessment on the final unit(s) of competency took place and was assessed as successfully completed. 52I direct the parties to confer with respect to this Recommendation. I will stand this matter over for ten days from the date of this Decision giving leave to either party to have the matter re listed if required. If the Commission is not required I will deem that this dispute has concluded. d.ritchie commissioner 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: 24 November 2011