Crown Employees (Fire and Rescue NSW Firefighting
Staff Death and Disability) Award 2023
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Industrial Relations Secretary.
(Case No. 50173 & 45309 of 2023)
|
Before Commissioner McDonald
|
17 October 2023
|
AWARD
1. Introduction,
Intentions and Commitments
1.1 This Award shall
be known as the "Crown Employees (Fire and Rescue NSW Firefighting Staff
Death and Disability) Award 2023".
1.2 The intentions
and commitments of this Award are to: -
1.2.1 Promote
firefighters’ health and fitness and to assist firefighters in meeting the
occupational requirements of their job.
1.2.2 Provide practical
support, education and assistance to firefighters
through structured health and fitness programs.
1.2.3 Provide
rehabilitation and retraining for permanent firefighters suffering partial and
permanent incapacity.
1.2.4 Provide benefits
in the event of the death or the termination of employment of permanently
incapacitated firefighters.
2. Index
1. Introduction,
Intentions and Commitments
2. Index
3. Definitions
4. Health
Screening
5. Death and
Disability Superannuation Fund
6. Contributions
to the Death and Disability Superannuation Fund
7. Other
Benefits Applicable to Firefighters
8. Medical
Retirement
9. "On
Duty" Death Benefits
10. "On
Duty" Total and Permanent Incapacity Benefits
11. "Off
Duty" Death and Total and Permanent Incapacity Benefits
12. Rehabilitation
and Retraining for Permanent Firefighters who suffer Partial and Permanent
Incapacity
13. Partial and
Permanent Incapacity Benefits
14. Assessment
of Entitlement to Benefits
15. Grievance
Mechanism
16. Anti-Discrimination
17. Area,
Incidence, Duration and Parties Bound
Schedule 1 – 2022 Award Health Checks Provisions
3. Definitions
"actuary" means an actuary appointed by the
Trustee of the Death and Disability Superannuation Fund.
"compulsory employer
contributions" has the same meaning as it has in section 12(1) of the First State Superannuation Act 1992.
"Deemed annual salary" means the "Per
Week" rate of pay of a Qualified Firefighter as set out at Table 1 of Part
C of the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff)
Award multiplied by 52.1785.
"Deemed fortnightly salary" means the "Per
Week" rate of pay of a Qualified Firefighter as set out at Table 1 of Part
C of the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff)
Award multiplied by 2.
"Death and Disability Superannuation Fund" means
the superannuation fund established in accordance with this Award.
"Electricity Industry Superannuation Scheme"
("EISS") has the same meaning as it has in the Superannuation Administration Act 1996.
"FBEU" means the Fire Brigade Employees’ Union of
New South Wales.
"FRNSW" means Fire and Rescue New South Wales,
established by the Fire Brigades Act
1989 and as a Public Service Executive Agency under Schedule 1 of the Government Sector Employment Act 2013.
"firefighter" means either a permanent firefighter
or a retained firefighter as defined in this clause.
"First State Superannuation Scheme"
("FSS") means the superannuation scheme established under the First State Superannuation Act 1992.
"Judges Pension Scheme" ("JPS") means
the superannuation scheme established under the Judges’ Pensions Act 1953.
"Local Government Superannuation Scheme"
("LGSS") has the same meaning as it has in the Superannuation Administration Act 1996.
"off duty injury" means
any personal injury or disease which is not an on duty injury.
"on duty injury" means personal injury arising out
of or in the course of employment as a firefighter and includes a disease which
is contracted by a firefighter in the course of his/her employment as a
firefighter and to which the employment was a contributing factor, and the
aggravation, acceleration, exacerbation or deterioration of any disease, where
his/her employment as a firefighter was a contributing factor to the
aggravation, acceleration, exacerbation or deterioration but does not include a
personal injury or disease arising out of or in the course of journeying to or
from work subject to the proviso that a retained firefighter responding to an
incident shall be considered to be on duty from the time of call.
"ordinary duties" means
the full range of work that was usually performed by the firefighter
immediately prior to suffering the condition, illness or injury that caused
them to cease to perform, in whole or in part, such work.
"Parliamentary Contributory Superannuation Fund"
("PCSF") means the fund referred to in section 5 of the Parliamentary Contributory Superannuation
Act 1971.
"partial and permanent
incapacity" means that a firefighter is no longer fit to carry out the full
range of his/her ordinary duties with FRNSW.
"PBRI" means the Police Blue Ribbon Insurance
arrangements established under the Police Amendment (Death and Disability)
Regulation 2011.
"permanent firefighter"
has the same meaning as ‘employee’ under the Crown Employees (Fire and Rescue
NSW Permanent Firefighting Staff) Award.
"Police Superannuation Scheme" ("PSS")
means the superannuation scheme established under the Police Regulation (Superannuation) Act 1906.
"retained firefighter"
has the same meaning as ‘employee’ under the Crown Employees (Fire and Rescue
NSW Retained Firefighting Staff) Award.
"spouse" means a person who falls within the
definition of "spouse" or "de facto partner" in the Superannuation Act 1916.
"State Authorities Non-contributory Superannuation
Scheme" ("SANCS") means the superannuation scheme established
under the State Authorities
Non-contributory Superannuation Act 1987.
"State Authorities Superannuation Scheme"
("SASS") means the superannuation scheme established under the State Authorities Superannuation Act
1987.
"State Superannuation Scheme" ("SSS")
means the superannuation scheme established under the Superannuation Act 1916.
"total and permanent
incapacity" means that the firefighter is unlikely, by reason of ill-health
(whether physical or mental) to ever again engage in gainful employment for
which the firefighter is reasonably qualified by education, training or
experience.
4. Health Screening
4.1 The parties agree
and accept the need for a non-compulsory and non-punitive health screening
program that is underpinned by practical support, education and assistance
provided by FRNSW.
4.2 The parties
agree that the Health Screening Program will be in accordance with clause 58 of
the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) 2023
Award for permanent firefighters and clause 52 of the Crown Employees (Fire and
Rescue NSW Retained Firefighting Staff) Award 2023 for retained firefighters.
4.3 The Health Screening program
referenced in subclause 4.2 will replace the current Health Checks system
provided for under this Award and will operate for a trial basis for 36 months
commencing on a date to be agreed between FRNSW and FBEU. The current clauses
relating to Health Checks (as contained at clause 8 and Annexure A of the Crown
Employees (Fire and Rescue NSW Firefighting Staff Death and Disability Award
2022 and replicated at Schedule 1 of this Award) will have no application (with
the exception of that provided for by clauses 8.1 (c), 14.1 and Fitness Drills at 8 a) and b) of Annexure A of
Schedule 1) until the expiry of the 36 month trial period at which point
they will either be removed from the Award by consent of the parties or
become re-operative, following consultation between the parties in accordance
with clause 9 of the Crown Employees (Fire and Rescue NSW Permanent
Firefighting Staff) 2023 Award and clause 8 of the Crown Employees (Fire and
Rescue NSW Retained Firefighting Staff) Award 2023.
5. Death and
Disability Superannuation Fund
5.1 FRNSW will
maintain, with the agreement of the FBEU, a Death and Disability Superannuation
Fund to pay the benefits prescribed by clauses 9, 10 and 11 of this Award. The Fund shall operate in accordance with
relevant Commonwealth legislation and the terms of the trust deed by which it
is created.
5.2 The terms of the
trust deed by which the Death and Disability Superannuation Fund is created
shall provide that the Trustee of the Death and Disability Superannuation Fund
is required to reduce the benefits otherwise payable from the said fund so as to offset any benefits prescribed by this Award that
have previously been paid from the Death and Disability Superannuation Fund or
by FRNSW pursuant to this Award.
6. Contributions to
the Death and Disability Superannuation Fund
6.1 Subject to
subclause 6.2, permanent firefighters who are less than 67 years of age and who
are covered by FSS or who are contributors to SASS or who have elected under
section 10 of the First State
Superannuation Act 1992 to make other arrangements shall each fortnight
contribute an amount equivalent to 0.8 per cent of the Deemed fortnightly
salary to the Death and Disability Superannuation Fund.
6.2 Permanent
firefighters who contribute to SASS and who contribute for additional benefit
cover shall within three months of commencing employment make an election on a
"once only" basis, whether they wish to contribute to the Death and
Disability Superannuation Fund. Permanent firefighters who elect to not
contribute to the Death and Disability Superannuation Fund shall not be
eligible to receive a pension or lump sum payment prescribed by this Award.
6.3 The
contributions prescribed by this Award in relation to permanent firefighters
who are contributors to SASS are additional to the contributions that they are
required to make under the State
Authorities Superannuation Act 1987.
6.4 Notwithstanding
the provisions of the Crown Employees (Fire and Rescue NSW Permanent
Firefighting Staff) Award and the Crown Employees (Fire and Rescue NSW Retained
Firefighting Staff) Award, a firefighter who is required or elects to make
contributions pursuant to this clause will do so by sacrificing an amount of
unearned salary equivalent to the firefighter’s contribution pursuant to this
clause, unless they elect to contribute from their post-tax salary. Such salary
sacrifice shall not be taken into account for the
purpose of calculating the remuneration that the firefighter would have
received in the event that no salary sacrifice had been applicable.
6.5 Subject to
subclause 6.6, FRNSW shall each fortnight contribute an amount equivalent to
0.5 per percent of the Deemed fortnightly salary to the Death and Disability
Superannuation Fund in respect of each retained firefighter who is less than 67
years of age.
6.6 FRNSW shall each
fortnight contribute an amount equivalent to 0.2 percent of the Deemed fortnightly
salary to the Death and Disability Superannuation Fund in respect of each
retained firefighter who is less than 67 years of age and who, by virtue of
their primary employment, is already a member of SSS, PSS, the LGSS or EISS
Division D "Defined Benefit Scheme", the JPS, PCSF, PBRI or who is a
LGSS or EISS Division B "Retirement Scheme" member with additional
benefit cover or who is a SASS member with additional benefit cover.
6.7 FRNSW shall
contribute to the Death and Disability Superannuation Fund such sum as may be
necessary to meet any shortfall between the Fund’s reserves and that sum that
it needs in order to pay the superannuation pensions
and superannuation lump sum benefits prescribed by this Award (or past Awards).
6.8 A firefighter on
any form of leave without pay shall continue to be covered by this Award and
shall be required to make the contributions that he/she would otherwise have
made had he/she not been on leave without pay.
6.9 FRNSW shall each
fortnight deduct the contributions that firefighters are required or elect to
make pursuant to this clause from their salaries and forward such contributions
together with the contributions that FRNSW is required to make in respect of
retained firefighters to the Death and Disability Superannuation Fund.
7. Other Benefits
Applicable to Firefighters
7.1 The benefits conferred upon firefighters
by this Award shall be in addition to those benefits otherwise payable under
the FSS Scheme, the SASS scheme and/or the Workers
Compensation Act 1987 and Workplace
Injury Management and Workers Compensation Act 1998, as varied from time to
time.
8. Medical Retirement
8.1 A firefighter
who has either:
(a) been
directed to access their benefits under this Award by FRNSW in accordance with
clause 58 of the Crown Employees (Fire and Rescue NSW Permanent Firefighting
Staff) Award and Clause 52 of the Crown Employees (Fire and Rescue NSW Retained
Firefighting Staff) Award; and/or
(b) has
reason, supported by medical information, to believe that they may be unfit for
duty, permanently or otherwise;
can access the benefits provided for under clause 10,
11 and 13 of this Award.
(c) Where FRNSW disagrees with the medical
information at subclause 8.1 (b) above, Clause 8 at Schedule 1 will apply.
9. "On Duty"
Death Benefits
9.1 The benefits
prescribed by this clause are payable from the Death and Disability
Superannuation Fund.
9.2 In the event
that an on duty injury results in the death of a
firefighter for whom the Death and Disability Superannuation Fund is receiving
contributions pursuant to subclause 6.1 or 6.5, a fortnightly pension
equivalent to 40% of the Deemed fortnightly salary shall be paid to the
deceased firefighter’s spouse until that spouse’s death.
9.3 Children’s
pensions shall be payable in addition to the spouse pension payable under
subclause 9.2 on the same basis as in SSS, provided that such fortnightly
pensions shall be set at a rate equivalent to 5% of the Deemed fortnightly
salary in respect of each eligible child.
9.4 Pensions shall
be able to be commuted on the same basis as in SSS.
9.5 The provisions
of the other subclauses of this clause shall not apply in the event that an on duty injury results in the death of a firefighter who
does not have a spouse at the time of his or her death. In such cases, the
firefighter’s death shall, for the purposes of this Award, be treated as if it
was the result of an off duty injury and a lump sum
payment shall be paid from the Death and Disability Superannuation Fund in
accordance with the following table.
|
Age
|
Benefit as a
multiple of the Deemed Annual Salary
|
|
59 and under
|
4.8
|
|
60
|
4.2
|
|
61
|
3.6
|
|
62
|
3.0
|
|
63
|
2.4
|
|
64
|
1.8
|
|
65
|
1.2
|
|
66
|
0.6
|
|
67
|
0.0
|
9.6 A minimum guaranteed
lump sum benefit is payable in the same circumstances as prescribed in section
31A of the Superannuation Act 1916,
but the "minimum benefit" as defined in section 31A(7)
will not apply and for the purposes of this Award the minimum benefit shall be
the amount that would have been payable under subclause 9.5 had the firefighter
not had a spouse at the time of the firefighter’s death.
9.7 The fortnightly
pensions payable under this clause shall continue to be adjusted throughout the
life of each such pension in line with movements in the Deemed salary.
9.8 In the case of a
retained firefighter for whom the Death and Disability Superannuation Fund is receiving
contributions pursuant to subclause 6.6 and who suffers death as the result of
an on duty injury and who, by virtue of his/her primary employment, was already
a member of SSS, PSS, the LGSS or EISS Division D "Defined Benefit
Scheme", the JPS, PCSF (or such other public sector defined benefit
schemes as agreed between the parties), PBRI or who was a LGSS or EISS Division
B "Retirement Scheme" member with additional benefit cover or who was
a SASS member with additional benefit cover, the other benefits of this clause
shall not be payable and a lump sum benefit equivalent to 20% of the Deemed
annual salary shall instead be paid to the deceased retained firefighter’s
estate.
10. "On
Duty" Total and Permanent Incapacity Benefits
10.1 The benefits prescribed
by this clause are payable from the Death and Disability Superannuation Fund.
10.2 In the event that
an on duty injury results in the total and permanent
incapacity of a firefighter for whom the Death and Disability Superannuation
Fund is receiving contributions pursuant to subclause 6.1 or 6.5, a fortnightly
pension equivalent to 60% of the Deemed fortnightly salary shall be paid to the
firefighter until his or her 67th birthday or death (whichever the earlier).
10.3 Pensions shall be
able to be commuted at age 60 or any time thereafter, with the commuted lump
sum to be determined in accordance with the table at subclause 9.5.
10.4 Where a former
firefighter in receipt of a total and permanent incapacity pension suffers
death prior to his or her 67th birthday then a lump sum amount determined in
accordance with clause 11 shall be paid to the deceased former firefighter’s
estate.
10.5 To avoid doubt,
the lump sum payments under subclauses 10.3 and 10.4 shall be determined by the
former firefighter’s age at the time of commutation or death,
as the case may be, and not their medical retirement
10.6 The fortnightly
pensions payable under this clause shall continue to be adjusted throughout the
life of each such pension in line with movements in the Deemed salary
10.7 In the case of a
retained firefighter for whom the Death and Disability Superannuation Fund is
receiving contributions pursuant to subclause 6.6 and who suffers total and
permanent incapacity as the result of an on duty injury and who, by virtue of
his/her primary employment, is already a member of SSS, PSS, the LGSS or EISS
Division D "Defined Benefit Scheme", the JPS, PCSF (or such other
public sector defined benefit schemes as agreed between the parties), PBRI or
who is a LGSS or EISS Division B "Retirement Scheme" member with
additional benefit cover or who is a SASS member with additional benefit cover,
the other benefits of this clause shall not be payable and the retained
firefighter shall instead be paid a lump sum benefit equivalent to 20% of the
Deemed annual salary.
11. "Off
Duty" Death and Total and Permanent Incapacity Benefits
11.1 The benefits
prescribed by this clause are payable from the Death and Disability
Superannuation Fund.
11.2 Subject to
subclause 11.4, in the event that an off duty injury
results in the death or total and permanent incapacity of a firefighter for
whom the Death and Disability Superannuation Fund is receiving contributions
pursuant to subclause 6.1 or 6.5, a lump sum payment in accordance with the
scale set out in subclause 11.3 shall be paid to the firefighter or his/her
estate.
11.3 For the purposes
of this subclause, a firefighter’s age shall be his/her age at the time of
his/her death or at the date that he/she ceases to be employed by FRNSW or at
such earlier date as may be determined by the Trustee of the Death and
Disability Superannuation Fund.
|
Age
|
Benefit as a
multiple of the Deemed Annual Salary
|
|
59 and under
|
4.8
|
|
60
|
4.2
|
|
61
|
3.6
|
|
62
|
3.0
|
|
63
|
2.4
|
|
64
|
1.8
|
|
65
|
1.2
|
|
66
|
0.6
|
|
67
|
0.0
|
11.4 The actuary shall
separately review and assess the cost of the benefits provided by this Award
for both permanent firefighters and retained firefighters by 30 June each year.
In the event that the actuary’s review finds that the long-term cost of the off
duty benefits provided by this clause for either employee group exceeds both
(a), the long-term contributions to be made by that employee group, and (b),
30% of the long-term combined cost of the benefits provided clauses 9, 10 and
11 for that employee group, then the scale at subclause 11.3 shall be reduced
for that employee group on 1 January next to the extent necessary to ensure
that the long-term cost of the off duty benefits for that employee group no
longer exceeds either (a) or (b). Once the scale is reduced for an employee
group it shall remain subject to annual adjustment, both upwards and downwards
as each review permits, until such time as the scale at subclause 11.3 is
returned to provided that where any adjustment would be less than 5% then no
adjustment will be made.
11.5 Retained
firefighters for whom the Death and Disability Superannuation Fund is receiving
contributions pursuant to subclause 6.6 and who suffer death or total
incapacity as the result of an off duty injury and who, by virtue of their
primary employment, are already members of SSS, PSS, the LGSS or EISS Division
D "Defined Benefit Scheme", the JPS, PCSF (or such other public
sector defined benefit schemes as agreed between the parties), PBRI or who are
LGSS or EISS Division B "Retirement Scheme" members with additional
benefit cover or who are SASS members with additional benefit cover shall not
be entitled to the other benefits of this clause and a lump sum benefit
equivalent to 20% of the Deemed annual salary shall instead be paid to such
retained firefighters or their estate.
12. Rehabilitation and
Retraining for Permanent Firefighters Who Suffer Partial and Permanent
Incapacity
12.1 Every permanent
firefighter who suffers partial and permanent incapacity (PPI) shall receive
extensive rehabilitation/retraining with the objective placing them in a
suitable position within FRNSW. All reasonable efforts will be made by FRNSW to
ensure that a permanent firefighter who suffers PPI is so placed, including by
identifying potential employment opportunities as soon as practicable and
directing the firefighter’s rehabilitation/retraining to that end, and in
consultation with the firefighter concerned and the FBEU (unless the
firefighter expressly declines to agree to the FBEU being informed).
12.2 Where FRNSW
believes that, notwithstanding every reasonable effort to the contrary, a
suitable position may not be found for a permanent firefighter who, by reason
of PPI, is undergoing rehabilitation/retraining, the firefighter concerned and
the FBEU (unless the firefighter expressly declines to agree to the FBEU being
informed) shall be informed at the earliest possible opportunity.
12.3 The employment of
a permanent firefighter who suffers PPI will not be terminated because of the
lack of a suitable position within FRNSW without the firefighter’s
consent. In the event
that the firefighter does not consent, an adequate opportunity will be
given to the firefighter concerned and the FBEU (unless the firefighter
expressly declines to agree to the FBEU being informed) to consider FRNSW’s
opinion that no suitable position is available and to put that opinion into
dispute in accordance with the dispute resolution clause in this Award.
12.4 The parties agree
that it is anticipated that the rehabilitation/retraining and associated
forward planning associated will minimise the likelihood that any permanent
firefighter who suffers PPI will be terminated because at the end of their
rehabilitation/retraining, a suitable position is not available.
13. Partial and
Permanent Incapacity Benefits
13.1 The partial and
permanent incapacity benefits prescribed by this clause are provided and
payable by FRNSW.
13.2 FRNSW may terminate
the employment of a firefighter who suffers partial and permanent incapacity.
Subject to subclause 13.3, a firefighter whose employment is terminated because
the firefighter suffers partial and permanent incapacity shall be given the
option of:
13.2.1 being paid a lump
sum payment in accordance with this clause immediately upon termination; or
13.2.2 deferring a lump
sum payment in accordance with this clause pending the determination of the
firefighter’s claim for a total and permanent incapacity benefit.
13.3 Subject to
paragraph 13.2.2, a firefighter whose employment is terminated because the
firefighter suffers partial and permanent incapacity shall be paid a lump sum
payment in accordance with the scale set out below:
|
Age
|
Benefit as a multiple
of the Deemed Annual Salary
|
|
|
for permanent
firefighters
|
for retained
firefighters
|
|
52 and under
|
3.08
|
0.308
|
|
53
|
2.81
|
0.281
|
|
54
|
2.53
|
0.253
|
|
55
|
2.25
|
0.225
|
|
56
|
1.95
|
0.195
|
|
57
|
1.65
|
0.165
|
|
58
|
1.34
|
0.134
|
|
59
|
1.02
|
0.102
|
|
60
|
0.69
|
0.069
|
|
61
|
0.35
|
0.035
|
|
62
|
0
|
0
|
14. Assessment of
Entitlement to Benefits
14.1 Entitlement to
the partial and permanent incapacity benefits provided by FRNSW pursuant to this
Award shall be assessed through the mechanism provided for in the provisions
contained at Schedule 1 of this Award titled “Clause 8. Assessment of Fitness
for Duty and Permanent Incapacity”.
14.2 Entitlement to
receive a total and permanent incapacity or death benefit from the Death and
Disability Superannuation Fund shall be assessed in accordance with relevant
Commonwealth legislation and the terms of the trust deed by which the Fund
operates.
14.3 To avoid doubt, a
firefighter can receive either a total and permanent incapacity benefit, or a
partial and permanent incapacity benefit, but not both. FRNSW shall advise the
Death and Disability Fund the name of any firefighter who receives a partial
and permanent incapacity lump sum payment, and of the amount so paid.
14.4 Subject to
subclause 14.2, any dispute as to the entitlement to receive a benefit from the
Death and Disability Superannuation Fund or any other dispute arising under or
regarding the application of this Award may be referred to the Industrial
Relations Commission of New South Wales for final determination.
14.5 To avoid doubt,
the provision at subclauses 12.1, 12.2 and 12.3 whereby the FBEU is to be
informed "unless the firefighter expressly declines to agree to the FBEU
being informed" is intended to allow the firefighter to seek the FBEU’s
advice before authorising or agreeing to any course of action or signing any
document associated with those subclauses and unless the firefighter does
expressly decline to agree to the FBEU being informed then FRNSW will neither
expect nor allow a firefighter to authorise or agree to any course of action
nor sign any document associated with their rehabilitation/retraining or
possible termination until such time as the FBEU has been notified in writing
and been given adequate opportunity to confer with the firefighter.
15. Grievance
Mechanism
15.1 If an issue gives
rise to a dispute it shall be dealt with in accordance
with the Dispute Procedure in clause 10 of the Crown Employees (Fire and Rescue
NSW Permanent Firefighting Staff) Award.
16.
Anti-Discrimination
16.1 It is the
intention of the parties bound by this Award to seek to achieve the object in
section 3(f) of the Industrial Relations
Act 1996 to prevent and eliminate discrimination in the workplace. This includes discrimination on the grounds
of race, sex, marital status, disability, homosexuality, transgender identity, age and responsibilities as a carer.
16.2 It follows that
in fulfilling their obligations under clause 15 of this Award the parties have
obligations to take all reasonable steps to ensure that the operation of the
provisions of this Award are not directly or indirectly discriminatory in their
effects. It will be consistent with the
fulfilment of these obligations for the parties to make an application to vary
any provision of this Award, which by its terms or operation, has direct or
indirect discriminatory effect.
16.3 Under the Anti-Discrimination Act 1977, it is
unlawful to victimise an employee because the employee has made or may make or
has been involved in a complaint of unlawful discrimination or harassment.
16.4 Nothing in this
clause is taken to affect any conduct or act which is specifically exempted
from anti-discrimination legislation; offering or providing junior rates of pay
to persons under 21 years of age; any act or practice of a body established to
propagate religion which is exempted under section 56(d) of the Anti-Discrimination Act 1977; and/or a
party to this Award from pursuing matters of unlawful discrimination in any
State or Federal jurisdiction.
16.5 This clause does
not create legal rights or obligations in addition to those imposed upon the
parties by legislation referred to in this clause.
17. Area, Incidence,
Duration and Parties Bound
17.1 This Award shall
apply to all permanent firefighters and retained firefighters, as defined in
clause 3, Definitions, who are employed by FRNSW.
17.2 This Award shall
rescind and replace the Crown Employees (Fire and Rescue NSW Firefighting Staff
Death and Disability) Award 2022.
17.3 This Award shall
be binding upon the FBEU and FRNSW.
17.4 This Award shall
take effect on and from 26 February 2023 and shall remain in force until 25
February 2024.
Schedule 1 – 2022 Award Health Checks Provisions
Clause 8. Assessment
of Fitness for Duty and Permanent Incapacity
8.1. The procedures
set out at subclauses 8.2 to 8.5 inclusive will apply if:
8.1.1 FRNSW has reason
to believe that:
8.1.1.1 a firefighter
may be unfit for duty, permanently or otherwise, and
that firefighter disagrees; or
8.1.1.2 it may
be necessary to impose certain medical/physical conditions or restrictions on a
firefighter, permanently or otherwise, and that firefighter disagrees with the
need for some or all such conditions or restrictions; or
8.1.2 A firefighter has
reason, supported by medical information, to believe that:
8.1.2.1 the
firefighter may be unfit for duty, permanently or
otherwise, and FRNSW disagrees; or
8.1.2.2 it may
be necessary to impose certain medical/physical conditions or restrictions on
the firefighter, permanently or otherwise, and FRNSW disagrees with the need
for some or all such conditions or restrictions; or
8.1.3 A firefighter has
already been assessed as defined at paragraphs 8.6.2, 8.6.3 or 8.6.4 and
subsequently obtains more contemporary information which suggests that they may
be fit or that their requirements or restrictions should be changed, and FRNSW
disagrees.
8.2 If the medical
assessment is initiated by FRNSW at subclause 8.1.1 then FRNSW will advise the
firefighter in writing of their need to undergo an immediate health assessment
by a medical practitioner nominated by FRNSW, and its reason(s) for such
referral.
8.3
8.3.1 If FRNSW believes
at any point in time that a permanent firefighter’s condition is such that by
remaining on-duty he/she may endanger themselves, their colleagues or the
public, FRNSW will, having regard to the firefighter’s circumstances, either
assign appropriate alternative duties for the firefighter or direct the
firefighter on special leave (which is not to be deducted from any of the
firefighter’s leave balances) pending the determination of their condition in
accordance with this clause. A permanent firefighter who is stood down from
their ordinary duties in accordance with this subclause will continue to
receive their ordinary pay until such date as the Industrial Relations
Commission determines that the firefighter has failed to cooperate with the reasonable
directions of FRNSW under this Clause, or the assessing medical practitioner
reports pursuant to subclause 8.6. To avoid doubt, a permanent firefighter’s
ordinary pay shall be the pay to which the permanent firefighter would have
been entitled had they been on sick leave.
8.3.2 Subject to
paragraph 8.3.3, if FRNSW believes at any point in time that a retained
firefighter’s condition is such that by continuing to attend emergency
incidents he/she may endanger themselves, their colleagues or the public, FRNSW
will allow the firefighter to respond to their station, but not the incident,
for all calls received by their brigade, and to attend all drills pending the
determination of their condition in accordance with this clause. A retained
firefighter who is placed on non-response duties in accordance with this
subclause will continue to be permitted to - 6 - attend the station for calls
and drills until such date as the Industrial Relations Commission determines
that the firefighter has failed to cooperate with the reasonable directions of
FRNSW under this clause, or the assessing medical practitioner reports pursuant
to subclause 8.6.
8.3.3 If FRNSW believes
at any point in time that a retained firefighter’s condition is such that by
continuing to attend the station he/she may endanger themselves, their colleagues or the public, FRNSW will direct the firefighter
to not attend their station pending the determination of their condition in
accordance with this clause. A retained firefighter who is excluded from their
station in accordance with this subclause will be paid a fortnightly amount
equivalent to the retained firefighter’s highest fortnightly pay within the
three month period immediately prior to their exclusion, and such payment shall
continue until such date as the Industrial Relations Commission determines that
the firefighter has failed to cooperate with the reasonable directions of FRNSW
under this clause, or the assessing medical practitioner reports pursuant to
subclause 8.6.
8.4 Whether the
medical assessment is initiated by FRNSW at paragraph 8.1.1 or a firefighter at
paragraph 8.1.2, FRNSW will arrange for a reasonable appointment for the
firefighter as soon as possible, if not with FRNSW’s preferred medical
practitioner then with some other suitable medical practitioner, and will
notify both the firefighter and the assessing medical practitioner in writing
setting out:
8.4.1 the time, date
and location of the appointment;
8.4.2 the inherent
requirements of the firefighter’s ordinary duties and the firefighter’s typical
work environment(s);
8.4.3 the
health-related issue(s), if any, which FRNSW believes may be affecting work performance;
8.4.4 the manner in which
it is believed work performance has been/is being and/or may be affected,
including evidence where available;
8.4.5 any specific
question(s) from FRNSW. It will not be sufficient to simply request an
assessment of a firefighter’s "fitness to continue" or assume such
question(s) would be inferred by the assessing medical practitioner from the
general background information provided; and
8.4.6 a summary of all
relevant documents in checklist format.
8.5 The assessing
medical practitioner should take into account any and
all relevant material supplied by FRNSW, the firefighter and/or the
firefighter’s own medical practitioner(s). FRNSW will ensure that any material
provided to the assessing medical practitioner will at the same time also be
provided to the firefighter and/or the medical practitioner(s) nominated by the
firefighter.
8.6 The assessing
medical practitioner’s report, which will be in writing and provided to both
FRNSW and the firefighter, should conclude that the firefighter is, in that
medical practitioner’s opinion, either:
8.6.1 fit to perform
the firefighter’s ordinary duties without any requirements or restrictions; or
8.6.2 fit to perform
the firefighter’s ordinary duties with specified requirements or restrictions;
or
8.6.3 temporarily unfit
to perform the firefighter’s ordinary duties but fit to perform alternative
duties, either with or without specified requirements or restrictions; or
8.6.4 temporarily unfit
to perform any FRNSW duties; or
8.6.5 permanently unfit
to perform the firefighter’s ordinary duties.
8.7 FRNSW will write
to the firefighter within 7 days of receipt of the assessing medical
practitioner’s report stating that it has either:
8.7.1 wholly accepted
the assessing medical practitioner’s report; or
8.7.2 partially
accepted the assessing medical practitioner’s report, together with the
reason(s) for its non-acceptance of the relevant part(s); or
8.7.3 accepted none of the
assessing medical practitioner’s report and its reasons for same.
8.8 If the FRNSW
determination at subclause 8.7 is that the firefighter is permanently unfit to
perform the firefighter’s ordinary duties then the firefighter shall be deemed
for the purposes of this Award to have suffered partial and permanent
incapacity until determined otherwise in accordance with this clause. FRNSW
shall inform the FBEU (unless the firefighter expressly declines to agree to
the FBEU being informed) at the earliest possible opportunity.
8.9 A firefighter
may request by way of report that the Commissioner review the FRNSW
determination at subclause 8.7 within 14 days of receipt of that written
determination or within 7 days of the Department having informed the FBEU,
whichever is the later. A firefighter who makes such a request shall then be
allowed 28 days, or such additional time as the Commissioner may allow, in order for a medical practitioner of the firefighter’s
choosing to:
8.9.1 review all
previous reports and documentation relating to the matter; and
8.9.2 confer with a
FRNSW-nominated medical practitioner with a view to maximising the areas of
agreement and minimising any areas of disagreement between them. In order to facilitate such conferences, FRNSW and the
firefighter must, by no later than close of business on the next working day
following the firefighter’s request for a review, exchange the contact details
of their respective nominated medical practitioners and in the case of the
firefighter, written authorisation for their nominated medical practitioner to
discuss their medical information with the FRNSW nominated medical
practitioner; and
8.9.3 produce a report
(and, if the FRNSW-nominated medical practitioner is agreeable, a joint report)
of their conclusions.
8.9.4 The Commissioner
will consider all previous reports and documentation relating to the matter,
together with any additional information (including the medical practitioner’s
report at paragraph 8.9.3) submitted by the firefighter and will within 14 days
supply the firefighter concerned with a written and final FRNSW determination
of the matter.
8.10 If the
firefighter does not agree with the Commissioner’s determination at subclause
8.9 then the matter may be referred to the Industrial Relations Commission (the
Commission) for final determination of the matter, i.e.
whether the firefighter is;
8.10.1 fit to perform the
firefighter’s ordinary duties without any requirements or restrictions; or
8.10.2 fit to perform the
firefighter’s ordinary duties with specified requirements or restrictions; or
8.10.3 temporarily unfit
to perform the firefighter’s ordinary duties but fit to perform alternative
duties, either with or without specified requirements or restrictions; or
8.10.4 temporarily unfit
to perform any FRNSW duties; or
8.10.5 permanently unfit
to perform the firefighter’s ordinary duties.
8.11 Where a dispute
cannot be settled by conciliation, the parties agree in principle that the
preferred method of adjudication will be by the Commission utilising the ‘Bluescope model’. The ‘Bluescope
model’ will be adopted except where the Commission orders otherwise or where
one of the parties elects not to use the Bluescope
model and notifies the other party of this election as soon as practicable
before or at the time the dispute is notified to the Commission.
8.12 A firefighter who
is found to be temporarily unfit as per paragraphs 8.6.3 or 8.6.4 or 8.10.3 or
8.10.4 will be given the appropriate period of time,
as advised by the assessing medical practitioner, necessary for the firefighter
to return to their ordinary duties.
8.13 A firefighter who
fails to return to their ordinary duties within the appropriate period of time, or within six months from the date they last
performed their ordinary duties or previous assessment (whichever occurs first)
will be referred for medical re-assessment.
8.14 FRNSW will bear
the cost of any assessment conducted by a medical practitioner pursuant to
subclauses 8.4, 8.5 and 8.6, and of any independent assessment conducted at
subclause 8.13, provided that in the case of any review conducted at subclauses
8.8 and 8.9 (only), the firefighter and FRNSW will each be responsible for the
costs of their own nominated medical practitioner.
8.15 A firefighter who
fails to comply with a reasonable direction to attend and participate in a
medical assessment under this mechanism may be subject to disciplinary action.
8.16 A firefighter who
has been determined as suffering partial and permanent incapacity may at any
time elect to be assessed by the Death and Disability Superannuation Fund for
total and permanent incapacity, in which case FRNSW will make all reasonable
efforts to assist the Fund in concluding such assessment as soon as
practicable.
8.17 The employment of
a firefighter who is determined as suffering partial and permanent incapacity
will be terminated in accordance with clause 13, or otherwise upon such
firefighter’s consent or request.
ANNEXURE A
Principles and Procedures of the Firefighters’ Health and
Fitness Program
1. Objectives
- To promote the health and
fitness of firefighters and to assist them in meeting the occupational
requirements of their job.
- To provide practical
support, education and assistance to firefighters
through a structured health and fitness program.
2. Benefits for
the firefighter
- A compulsory health
assessment as recommended for the firefighter on medical advice.
- A comprehensive individual
report.
- Access to individual
health and fitness counselling sessions.
- Access to health and
fitness resource materials.
- Identification of negative
lifestyle habits and risks.
- Identification of some
medical conditions.
- Early intervention and
management of medical conditions.
- Health statistics over the
lifetime of career as a firefighter.
- Decreased risk of death, injury or disability from disease.
- Increased ability to cope
with the physical and emotional stresses of firefighter duties.
- Heightened job performance
and satisfaction.
3. General
benefits for the employer
Supplementary to saving lives, improving performance and achieving compliance with Workplace Health
and Safety legislation and Australian and international standards, it is
anticipated that the health and fitness program will make a significant
positive contribution to:
- the number and cost of
worker’s compensation and death and disability claims.
- payroll costs due to sick
or injured workers.
- identification of negative
health factors (work-related or other) for FRNSW.
4. Outcomes
- A healthy and fit
workforce.
- Increased capacity to cope
with the physical and psychological demands of firefighting.
- Decreased risk of injury,
illness and disease, leading to a reduction in the number and cost of health related absences, workers compensation
claims/premiums and Death and Disability claims.
- Compliance with relevant
Work Health and Safety legislation and Australian Standards.
- Identification and
analysis of trends for the purpose of developing firefighter specific
health and safety interventions.
5. Focus Areas
- Support Program - Introduction
of a comprehensive program designed to support firefighters in their
efforts to improve personal health outcomes.
- Health and fitness checks
- Introduction of a firefighter-specific health assessment program
designed to identify significant health issues.
6. Principles
- Broad consultation with
all stakeholders in the development and delivery of programs is critical
to success.
- Collaboration with
international, national and state initiatives is
essential for a sustained and systematic approach to health promotion and
injury/disease prevention.
- Linking relevant programs
and taking a comprehensive/holistic approach to health promotion and
injury/disease prevention will provide maximum impact.
- Long term ‘capacity
building’ will prolong and multiply health gains for both firefighters and
FRNSW.
7. Key
Strategies
Infrastructure
Develop the physical and organisational infrastructure needed
to implement program components. This includes support structure (e.g. health/fitness and return to work professionals),
related systems and procedures (e.g. data management, pathways for
rehabilitation), resources (e.g. educational materials).
Education
Increase awareness and understanding of general and
firefighter-specific health issues and provide the necessary skills to take
ownership of personal health outcomes. Focus on physical activity, nutrition,
smoking cessation, occupational and environmental exposures, and critical
incident stress as they relate to firefighter performance, mental health,
injury prevention and chronic disease development (cardiovascular disease,
cancer, diabetes, etc.).
Environments
Create work environments that promote and encourage
healthy lifestyle behaviours (a ‘healthy’ organisational culture). Focus on
provision of healthy lifestyle education.
Monitoring/Evaluation
Monitor health and fitness outcomes over time to
determine efficacy of programs. Including broad surveys of lifestyle changes (e.g. physical activity patterns), monitoring of injury and
illness trends, participation rates for health and fitness activities, and
periodic health assessment and ‘Return to Work’ program outcomes.
8. Health
Checks and Fitness Drills
Fitness Drills
(a) The health and
fitness program will include a compulsory fitness drill, commencing in January
2018, for all firefighters who may be called upon to perform operational
firefighting duties in order to enhance their personal
understanding of their functional capacity. The compulsory fitness drill will
be subject to negotiation and agreement or, in the absence of agreement,
determination by the Industrial Relations Commission (and the status quo will
apply in the interim), but will be undertaken annually, locally
and when on duty by not less than two firefighters utilising readily available
operational equipment.
(b) The annual fitness
drill for retained firefighters will be considered and paid for as if it is a
regular drill provided that attendance at the fitness drill will not count
towards the 75% regular drill attendance requirement of subclause 23.1.2 of the
Crown Employees (Fire and Rescue NSW Retained Firefighting Staff) Award 2023
and will be additional to the two regular drills per station, per month
provision of subclause 13.10.2 of the Crown Employees (Fire and Rescue NSW
Retained Firefighting Staff) Award 2023.
Health Checks
(c) The health and
fitness program will also include regular health checks for firefighters by the
firefighter’s nominated medical practitioner in accordance with a health check
pack, which will be subject to negotiation and in the event
that the parties do not agree, determination by the Industrial Relations
Commission, which must occur prior to 31 March 2018. Following implementation,
the health check pack will remain subject to negotiation and agreement
and it will be open to either party to refer any matter that is not agreed to
the Industrial Relations Commission for determination and the status quo will
apply in the interim. The health check pack will include the inherent
requirements of the firefighter’s ordinary duties and the firefighter’s typical
work environment(s), a template medical report and the tests to be conducted as
part of the health check.
(d) The
implementation of the health and fitness checks will help to ensure:
•
that firefighters are medically and physically capable
of performing their required duties;
•
that the risk of injury or illness is reduced through
constant monitoring of health trends and the implementation of focussed health interventions;
•
that FRNSW satisfies its statutory obligations under
all relevant legislation;
•
the provision of current and accurate health/medical
information for the purposes of resource allocation and planning.
(e) The health
checks will include:
•
Medical examination (primary focus on cardiovascular,
respiratory and musculoskeletal systems);
•
Pathology testing (general health markers;
e.g. lipid profile, blood glucose level);
•
Urinalysis;
•
Twelve lead ECG;
•
Cardiac Risk Profile (risk score based on Framingham
study);
•
Spirometry (lung function), if recommended by the
firefighter’s nominated medical practitioner;
•
Vision;
•
Audiometry (hearing), if recommended by the
firefighter’s nominated medical practitioner;
•
Other medical assessments as indicated.
(f) The health checks
(which will commence not prior to 31 January 2019 and in respect of any
commencement date, upon four weeks formal advance notice to the FBEU) will be
arranged and undertaken by each firefighter within the twelve month period
following their fourth anniversary of employment, and again within the twelve
month period following their ninth anniversary of employment, and so on, so
that health checks are undertaken at least once every five years up until the
age of 60, at which age health checks will then be arranged and undertaken by
each firefighter no more than three years after their last health check until
the age of 67, at which age health checks will then be arranged and undertaken
by each firefighter annually.
(g) The pathology
tests, urinalysis and 12 lead ECG testing will all be undertaken on referral by
the independent occupational physician prior to the health check, which will
then be conducted by a local medical practitioner nominated by the firefighter
having regard to the most reasonable option in terms of practicality and cost.
A nominated medical practitioner who recommends spirometry and/or audiometry
testing but, is unable to conduct such test(s), may refer the firefighter.
FRNSW will ensure that the health checks (including spirometry and audiometry
referrals) and any consequent referrals required by FRNSW will be arranged and
conducted without any cost to the firefighter.
(h) Firefighters who
attend a health check while off duty will be compensated for their attendance
and travel expenses by way of a payment equivalent to 4% of the Award’s deemed
fortnightly salary for each such attendance, and unless transport is provided
by FRNSW, payment at the Official Business rate for the actual return distance
necessarily and reasonably travelled between the firefighter’s normal residence
or place of work and the location(s) of each health check.
(i) The
firefighter’s nominated medical practitioner will forward their report on the
firefighter’s health check, together with the results, to both the firefighter
and the independent occupational physician nominated by FRNSW. The independent
occupational physician will in turn review the firefighter’s health check
results against the firefighters’ health and fitness standard and the nominated
medical practitioner’s report and advise FRNSW that the firefighter is:
•
fit to perform the firefighter’s ordinary duties
without any requirements or restrictions; or
•
fit to perform the firefighter’s ordinary duties with
specified requirements or restrictions; or
•
temporarily unfit to perform the firefighter’s ordinary
duties but fit to perform alternative duties, either with or without specified
requirements or restrictions; or
•
temporarily unfit to perform any FRNSW duties; or
•
permanently unfit to perform the firefighter’s ordinary
duties.
(j) The independent
occupational physician will provide no other information or advice to FRNSW
concerning the firefighter’s health and fitness without the firefighter’s
consent apart from such information regarding the specified requirements or
restrictions as, in the professional opinion of the independent occupational
physician, is necessary for the safe management of the firefighter. If the
firefighter disagrees with the independent occupational physician’s advice to
FRNSW, then it will be open to the firefighter to seek a determination of their
fitness for duty under clause 8.
(k) Where a medical
issue is identified during a health check, the health risk will be assessed
against the inherent requirements of the firefighter’s job (safety critical).
(l) The results of
the health checks will be collected and collated by an agreed independent third
party and provided to both parties to allow them to assess and respond to
firefighters’ health risks.
(m) FRNSW will not
cover the cost of treatment for non-compensable injuries or illness. The
treatment cost associated with compensable injuries or illness will be
addressed through the Workers’ Compensation system.
J. McDONALD, Commissioner
____________________
Printed by
the authority of the Industrial Registrar.