Industrial Relations Commission New South Wales Medium Neutral Citation: Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2014 [2014] NSWIRComm 33 Hearing dates: 10 May, 17 July, 26 August, 4 and 20 September, 31 October, 20 November 2013; 5, 12, 20, 21, 26 and 28 February, 21 and 26 March, 1 and 16 April and 9 May 2014 Decision date: 20 June 2014 Jurisdiction: Industrial Relations Commission Before: Walton J, President Decision: The Commission confirms the order made on 9 May last to make a new award known as the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2014 in terms of the amended application appearing in Annexure A to the affidavit of Ms Lawrence filed on 8 May 2014 in the proceedings. Catchwords: Award - application for a new retained firefighters award - reasons for decision - exceptional circumstances - lengthy conciliation process and partial 'Bluescope' arbitration - 100 year reform - increase in remuneration above 2.5 per cent - cl 6(1)(b) of Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 - employee-related savings -savings fully offset increase above 2.5 per cent - nature of changes to award - improvements in efficiency and benefits to the community - interest-based bargaining - milestone for industry - new award confirmed Legislation Cited: Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 Cases Cited: Construction, Forestry, Mining and Energy Union (New South Wales Branch) and Macquarie Generation [2009] NSWIRComm 160 Operational Ambulance Officers (State) Award and others [2008] NSWIRComm 168 Category: Principal judgment Parties: Fire Brigade Employees' Union of New South Wales (Applicant) Fire & Rescue NSW (First respondent) Secretary of the Treasury (Second respondent) Representation: J W Nolan (Applicant) M J Easton (Second respondent) C S Read - Senior Industrial Officer, Fire Brigade Employees' Union of New South Wales (Applicant) B H King - Assistant Director, Employee Relations, Fire & Rescue NSW (First respondent) P J Robinson - Crown Solicitor's Office (Second respondent) File Number(s): IRC 134 of 2013 REASONS FOR DECISION 1These reasons are given in elaboration of the short ex tempore reasons accompanying a decision of the Commission delivered on 9 May 2014 to make a new award known as the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2014. This course was chosen because of the special circumstances which underpinned or accompanied the making of those orders. 2It would be sufficient to satisfy the description of the proceedings as being 'exceptional' to observe, as the respondent, Fire & Rescue NSW, did in its written submission, that the new award "represents the most significant set of changes to the conditions of Retained Firefighters in their history, being in excess of 100 years". The central reform, in that respect, was the introduction of measures to substantially enhance the 'availability' of retained firefighters. Those changes resulted in improved service assurance to the community, greater efficiency in the work of retained firefighters and the attainment of concomitant savings in employee-related costs. The measures also provide greater equity in 'availability' arrangements for retained firefighters and a better 'work/life balance'. 3However, there are other aspects of both the procedure adopted and the outcome of the proceedings which demonstrate their rather special character: (1)This is the first occasion that an award has been made providing for increases in employee-related costs above 2.5 per cent per annum pursuant to the provisions of cl 6(1)(b) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2011. The evidence in the proceedings amply demonstrated that sufficient employee-related cost savings were achieved to fully offset increases in employee-related costs above 2.5 per cent; (2)The agreement as to changes in 'availability' conditions was the product of an extensive conciliation process conducted over a twelve month period. The balance of claims pressed by the Fire Brigade Employees' Union of New South Wales ('FBEU') from its amended application were either settled by negotiation between the parties or quickly resolved (in the case of three claims) by the adoption of the 'Bluescope' dispute resolution procedure: Re Operational Ambulance Officers (State) Award and others [2008] NSWIRComm 168 and Construction, Forestry, Mining and Energy Union (New South Wales Branch) and Macquarie Generation [2009] NSWIRComm 160; (3)Whilst the conciliation process was similar to that typically undertaken by the Commission in relation to applications to establish new or vary existing awards, the methodology adopted in this case was, at least implicitly, akin to interest-based bargaining and centred around a mutual concern over 'availability' arrangements (even though the rectification of the issues as to 'availability' proved to be somewhat complicated); (4)The process resulted in an adjustment in the relationship between the parties which was reflected in the mutual recognition each party afforded the other at the conclusion of the proceedings. It may be debated whether this change was a derivation of the long and complex process required to reach agreement, the emergence of relations built on trust during that process or the interest-based nature of the proceedings. However, these proceedings have initiated a transformation of a hitherto conflicted and argumentative relationship between the industrial parties which will hopefully continue over time. 4It is important to describe the broad areas of agreement reached between the parties before providing a more detailed description as to the change in 'availability' arrangements. In addition to an increase in remuneration for firefighters, there were a number of other reforms to conditions of employment introduced by the award. These were summarised in the submission of Fire & Rescue NSW, as follows: * The realignment of rates to reflect appropriate relativities between the ranks of Retained Firefighters. * The creation of new Retainer types that will allow Fire & Rescue NSW to pay for 'hours of availability' which match the hours of staff shortage at a particular station. * The requirement that all Retained Firefighters be available for 80 per cent of the calls received by their station in a 24 hour period per week, that period being nominated by the individual Retained Firefighter in consultation with their colleagues and Captain. * The use of an IT solution that will allow Fire & Rescue NSW and Retained Firefighters to see the staffing situation at their own station. * The creation of new hourly rates that recognise Deputy Captains and new Recruits. * The streamlining of Base Retainers so that 'availability' is rewarded on a more equitable basis. * A new provision that Easter Sunday and any other additional public holidays declared for the State be paid at overtime rates, reflecting a similar provision of the Permanent Firefighter Award. * A provision that allows Retained Firefighters to take three 'no medical certificate' sick leave days per annum in specified circumstances. * The financial recognition of Retained Firefighters who perform the 'Community First Responder' medical response role. * The inclusion of the 'Retained Telephone Alerting System' Allowance and its linkage to future award pay increases. * A requirement that Retained Firefighters attend the station or incident within 30 minutes of an incident call to qualify for payment. * A reduction in the rate paid for 'Relief Duties' for the first two hours but also the creation of a new two hour minimum payment. * A provision that operates to limit attendance payments in situations where 'Relief Duties' are being performed at the station. * A new cap on 'incident kilometre' claims of 14 kms for the home-station-home journey. * A new limitation on hourly rates payable for 'Higher Duties' at incidents. * A reduction in the timeframes involved in managing poor attendance. 5The employee-related savings concerning changes to 'availability' were encapsulated in the evidence of Mr Bernard King, Assistant Director, Employee Relations for Fire & Rescue NSW, as follows: Each of the savings initiatives referred to in paragraph 8 of this Affidavit have their own specific provision reflected in changed or new Award provisions, except for the saving associated with reduced occurrence of Standbys (renamed Relief Duties) and the reduction in kilometre claims associated with that. That saving results from the operation of four new Award provisions, and their operation in combination. Firstly, the new Award requirement upon Retained Firefighters to provide a 24 hour period of rostered availability (or periods totalling 24 hours) per week will show where in the roster, and to what extent if any at a particular station, there is an availability problem, allowing the targeting of any staff shortage by specific remedy and thus mitigating or obviating the need for Relief arrangements. Secondly, the new Award provision that disentitles Retained Firefighters from attendance payments for the period that a Relief firefighter is employed, unless the Retained Firefighter was already on the roster with the Relief firefighter, will create a strong incentive for employees collectively at a station to fill the roster and prevent a Relief firefighter from being utilised. Thirdly, the new special Retainers in the proposed new Award will allow persistent gaps in the 'roster' to be targeted and filled by employees with specific availability being required of them individually in return for a higher Retainer payment. In every case, the higher Retainer payment will be less costly than the cost of paying Relief payments. Fourthly, the reduction in the Award hourly rate of pay applicable to Relief Duties for the first two hours will reduce incentive to employees to seek to perform Relief Duties. 6In the final analysis, the outcome in these proceedings represented a singular achievement for the respective organisations, FBEU and Fire & Rescue NSW, both in terms of the amended application brought by the FBEU (and the related enterprise bargaining round) and the benefits afforded the wider community by their settlement. However, that milestone in firefighting services in New South Wales is ultimately the product of persons acting for industrial organisations. Recognition should be given, in that respect, to Mr C Read and Ms G Lawrence for the FBEU and Mr B King and Mr S McMartin for Fire & Rescue NSW. 7The Commission confirms the order made on 9 May last to make a new award known as the Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2014 in terms of the amended application appearing in Annexure A to the affidavit of Ms Lawrence filed on 8 May 2014 in the proceedings. ********** 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: 20 June 2014