News

D&D – Latest Govt. Offer & Union Response

August 25, 1999

LATEST OFFER FROM THE GOVERNMENT, DATED 24/8/99

DRAFT NO. 5

DRAFT ONLY – ‘WITHOUT PREJUDICE’

THIS AGREEMENT is made the day of August, 1999.

BETWEEN THE: NEW SOUTH WALES FIRE BRIGADE
EMPLOYEES’ UNION of 267 Sussex Street,
Sydney (“the FBEU”)

AND: NEW SOUTH WALES FIRE BRIGADES of 227
Elizabeth Street, Sydney (“the NSW Fire Brigades”)

AND: PUBLIC EMPLOYMENT OFFICE of Level 32,
Governor Macquarie Tower, 1 Farrer Place, Sydney
(“the PEO”)

IT IS AGREED AS FOLLOWS:

PART 1 – PRELIMINARY

Introduction

1. This Agreement is made under the provisions of section 72 of the Fire Brigades Act 1989, which enables the PEO to enter into an agreement with any association or organisation representing a group or class of members of permanent or volunteer fire brigades, with respect to industrial matters.

Job requirements of firefighters

2. In discharge of statutory responsibilities set out in the Fire Brigades Act 1989, firefighters face a range of particular circumstances that apply while undertaking operational duties and contain a range of special risks and demands. In recognition of these requirements, the parties have determined that the arrangements contained in this agreement shall apply.

Definitions

3. For the purposes of this Agreement, the following definitions shall apply:

‘Commissioner’ means the Commissioner of NSW Fire Brigades, holding office as such under the Public Sector Management Act 1988.

‘firefighter’ means a permanent employee of NSW Fire Brigades classified as a: Recruit, Firefighter (Levels 1 to 4 inclusive); Qualified Firefighter; Senior Firefighter; Leading Firefighter; Leading Firefighter (Qualified); Station Commander (having the rank of Station Officer); Operational Commander (having the rank of Inspector); Zone Commander or Deputy Regional Commander or any other employee having the rank of Superintendent or Chief Superintendent; or successor classifications deemed as such by the Commissioner.

‘industrial matters’ has the same meaning as set out in the Industrial Relations Act 1996.

‘operational duties’ are those duties performed while in attendance, on route to, and return from an incident; or other circumstances and duties determined by the Commissioner from time to time.

‘permanent partial disability’ is where it is reasonable to conclude that, for the firefighter in question:

(a) that the firefighter’s disability is due, directly or indirectly to the permanent physical or mental incapacity of the firefighter (not caused by any act or default of the firefighter intended to produce that incapacity); and

(b) that the firefighter is permanently unable, by reason of that incapacity, to perform the full range of duties that the firefighter was required to perform before the firefighter suffered the incapacity.

For the operation of this Agreement only, the determination of the existence of a permanent partial disability for a firefighter shall be by the Commissioner.

‘spouse’ includes a de facto spouse.

‘totally and permanently disabled’ is where the relevant determining body under the applicable superannuation scheme – State Authorities Superannuation Scheme or First State Superannuation Scheme – for the firefighter in question is satisfied:

(a) the firefighter’s cessation of employment with NSW Fire Brigades was due, directly or indirectly to the permanent physical or mental incapacity of the firefighter (not caused by any act or default of the firefighter intended to produce that incapacity); and

(b) the firefighter is, when the firefighter ceases to be employed by NSW Fire Brigades, permanently unable, by reason of that incapacity, to be engaged, or to be employed, in any remunerative occupation in which it would be reasonable to expect the firefighter to engage.

PART 2 – ARRANGEMENTS TO OPERATE FOR FIREFIGHTERS COVERED BY THE STATE AUTHORITIES SUPERANNUATION SCHEME AND/OR FIRST STATE SUPERANNUATION SCHEME

Total and permanent disability

4. For a firefighter totally and permanently disabled as a result of being engaged in operational duties, the NSW Government will pay an indexed pension, for the life of the former firefighter that, in combination with the payment of any benefits arising from the operation of the firefighter’s superannuation scheme(s) – State Authorities Superannuation Scheme or First State Superannuation Scheme – shall result in a pension that is not less than 60 per cent of salary at the time of the incident.

The dollar value of the pension shall be determined by the Commissioner on the advice of the Government Actuary, who will provide his/her advice taking into account the net value of any lump sum entitlement arising from the firefighter’s membership of State Authorities Superannuation Scheme or First State Superannuation Scheme. The pension will commence from the date of medical retirement.

On the death of a pensioner there shall be paid an indexed pension of two-thirds that payable to him/her at the time of death, together with children’s pensions payable at such rates and in such circumstances as specified in the Superannuation Act 1916.

Where there is no surviving spouse but there are children who would be eligible for an orphan’s pension as if the Superannuation Act 1916 had applied to the firefighter, a pension shall be payable in respect of such children at such rates and in such circumstances as specified in the Superannuation Act 1916.

Indexation of the pensions detailed in this clause will occur on the same basis as that set out in Divisions 6 and 7, Part 4 of the Superannuation Act 1916.

The pension payable to a former firefighter is additional to any workers’ compensation benefits that may be payable to the former firefighter.

Death of a firefighter while engaged in operational duties

5. For a firefighter killed as a result of an incident while engaged in operational duties, the NSW Government will pay an indexed pension that, in combination with the payment of any benefits arising from the operation of the firefighter’s superannuation scheme(s) – State Authorities Superannuation Scheme or First State Superannuation Scheme – shall result in a pension that is not less than 40 per cent of salary of the deceased firefighter at the date of death, to a spouse for the life of the spouse.

The pensions detailed in this clause shall operate on the same basis as that set out in the Superannuation Act 1916.

Indexation of the pensions detailed in this clause will occur on the same basis as that set out in Divisions 6 and 7, Part 4 of the Superannuation Act 1916.

The pension payable to the spouse of the deceased firefighter is additional to any workers’ compensation benefits that may be payable.

Firefighter with permanent partial disability

6. For a firefighter who suffers a permanent partial disability that renders the firefighter unable to perform the full range of operational duties, there will be no forced medical retirement. This provision is subject to the firefighter undertaking all reasonable training and required rehabilitation in order to be redeployed to duties which entail other than the full range of operational duties within NSW Fire Brigades. This training and rehabilitation will be provided or organised by NSW Fire Brigades. In the event that there are divergent views as to whether the firefighter concerned has undertaken and/or is continuing to undertake all reasonable training and rehabilitation, this determination shall be made by the Commissioner, and is subject to the Grievance mechanism described at clause 11. below.

PART 3 – HEALTH AND FITNESS STANDARDS FOR FIREFIGHTERS

7. All firefighters will be required to undergo regular and periodic testing to meet agreed fitness standards. In the event that fitness standards cannot be agreed between the NSW Fire Brigades and the FBEU within three months from the date of this Agreement, the fitness standards shall be as determined by the Commissioner. The fitness standards shall commence on 1 December 1999.

Partial and temporary incapacity

8. Those firefighters who fail to meet the applicable fitness standard shall participate in a program, with agreed timetables, in order to reach and maintain the required fitness standard. In the event that a timetable cannot be agreed, the timetable shall be as determined by the Commissioner.

9. Those firefighters who fail to meet the applicable fitness standard and then in continued good faith participate in a program, undertake all reasonable training and rehabilitation in order to attain the required fitness standard, shall continue to be redeployed to duties which entail other than the full range of operational duties within NSW Fire Brigades. Firefighters who continue to participate in a program on this basis will not face medical retirement if this is opposed by the firefighter.

10. A firefighter who refuses to participate in a program to reach and maintain the required fitness standard, or who does not in good faith participate in any such program or undertake all reasonable training and rehabilitation, may be subject to disciplinary provisions under the Fire Brigades (General) Regulation 1997.

PART 4

Grievance and disputes mechanism

11. Any grievances which arise from the operation of this Agreement shall be dealt with in accordance with the Grievance/Dispute Resolution Policy for NSW Fire Brigades applying at the time of entering into the Agreement, and detailed at pages 2-117 to 2-121 of Standing Orders 1998, Volume 2, Administration. If the issue gives rise to a dispute, it shall be dealt with in accordance with the Dispute Avoidance Procedures applying at the time of entering into the Agreement, and detailed at Clause 35 of the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 1997.

Incidence and duration

12. This Agreement shall apply to all permanent firefighters employed by NSW Fire Brigades.

13. This Agreement shall take effect from the date of signing, and shall remain in force thereafteruntil one month’s notice of its termination is given by any party to the other parties.

EXECUTED as an Agreement

Executed for and on behalf of
the NEW SOUTH WALES
FIRE BRIGADE EMPLOYEES’
UNION by the Secretary in the
presence of:

Executed for and on behalf of
the NEW SOUTH WALES
FIRE BRIGADES
by the Commissioner in the
presence of:

Executed for and on behalf of
the PUBLIC EMPLOYMENT
OFFICE by the Director-
General, Premier’s Department
in the presence of:

RESPONSE FROM THE UNION, DATED 25/8/99

25th August, 1999

Mr. Chris Raper
Director, Employee Relations
Premier’s Department of NSW
GPO Box 5341
Sydney NSW 2001

Without Prejudice

Dear Mr Raper,

Re: Death and Disability Dispute

I refer to your correspondence of yesterday, and your latest proposed agreement. That offer, and indeed the issue generally was again considered at length by the Union’s State Committee of Management yesterday.

The State Committee has rejected not only that proposal, but also the fundamental approach now being taken by the Government with regard to this dispute. I shall go to the State Committee’s rationale shortly, however I believe it appropriate that I first clarify the Union’s position with regard to the August 13 suspension of industrial action.

It is now apparent that I should have been more equivocal in conveying the extent of the Union’s “agreement” at that time. The Union’s rank and file membership determined that the bans should be lifted on August 13 to allow full and proper negotiations to proceed over the coming fortnight – no more and no less. The fact is that serious concerns over the principles underpinning the Heads of Agreement were held by both the State Committee and the rank and file at that time, but it was hoped that the ensuing negotiations could address those concerns. Regrettably, it is now appears that the Union’s optimism was misplaced.

Having now explored a raft of alternative approaches with the Government, we are not much closer to agreement today than we were three weeks (or months) ago and our Union remains resolute in our demand for equity in firefighter death and disability benefits. The Minister for Emergency Services has continued to openly state the Government’s belief “that there should be no disparity in death and disability benefits for frontline firefighters’. We agree, yet none of the proposals put to us to date have met the “no disparity” (ie parity) test.

You have identified six outstanding issues requiring further discussion, as follows:

(i) quantum for pension benefit

The Union has demonstrated that pension benefits for firefighters under the pre-1985 SSF scheme vary from 60% to 66% of wages. Further, it has been shown that the vast majority of firefighters would qualify for the upper 66% pension benefit.

The Union concurs with an approach whereby a single percentage figure would apply to all pensions rather than adopting a complex SSF-style mechanism which delivers variable percentage outcomes according to an individual firefighter’s rank and income. However, the Union will not allow the vast bulk of its members to be effectively short-changed for the sake of simplicity.

Accordingly, as we see it the Government has one of two options:
(1) to adopt a flat 66% rate, or
(2) to replicate in its entirety the complete SSF mechanism used to determine the applicable pension percentage on a case by case basis.

(ii) nature of instrument to be used for recording agreement

Our unequivocal objection to the proposed Incidence and Duration provision at Clause 13 whereby the proposed Agreement may be terminated on one month’s notice “given by any party to the other parties” remains. In fact, the retention of this patently ludicrous mechanism in yesterday’s proposal has only served to harden the resolve of the State Committee to see that any agreement is enshrined in both the relevant industrial Awards and in legislation.

In view of the arrangements recently made for NSW Police, there is clear precedent for whatever arrangements are ultimately agreed upon to be reflected in the Fire Brigades Act, 1989. It also follows that we can see no reasonable grounds on which the Government might object to such arrangements being included within the next Awards for permanent and retained firefighters respectively.

The significance of this particular issue should not be underestimated.

(iii) age 60 cap on benefits

The Union continues to hold that retirement at age 60 should be compulsory for firefighters, permanent and retained alike. However, despite a common and bi-partisan stance existing on this issue it is becoming clear that the ADB will not support an exemption for the NSWFB.

The Union is concerned that the long-term viability of the proposed Agreement would be questionable in the absence of compulsory age retirement for firefighters or alternatively, suitable superannuation retirement outcomes.

(iv) retained firefighters

We acknowledge the Government’s willingness to commit to “pro-rata” arrangements for our retained members. Nonetheless, the Union can not settle this dispute in the absence of a full and firm agreement being reached on the benefits to apply to retained firefighters. To that end we believe that the negotiations for benefits to apply to retained firefighters should be held in conjunction with, rather than subsequent to, the benefits for permanent firefighters.

(v) de facto definitions

The Government’s approach to de facto definitions, namely its reluctance to recognise same-sex partners, is hard to comprehend. Nonetheless, we remain confident that agreement can still be reached with further discussions between the parties.

(vi) our claim for “off-duty” insurance cover for TPI and death benefits

The Government has continually cited unsubstantiated “advice” it allegedly received to the effect that firefighters may take out private insurance to cover “off-duty” death and injury like any other worker. This is clearly not the case.

Firefighters are not regarded by insurance companies – nor indeed the Government – like any other worker. This fact is ably demonstrated by the different levels of cover available to public sector workers under First State Super. Firefighters under FSS are entitled to only half the level of death benefits available to public sector workers in the “Education and Public Service” category, despite being required to contribute the same amount for that cover. The Government has consistently protested that it cannot establish inequities within the public sector by making benefits available to firefighters which are not available to other public sector workers, yet it has already done so.

The latest advice available to the Union is that no insurer will bridge the gaps inherent in the Government’s proposed Agreement. We canvassed a sample of the insurance market to determine the likelihood of having a reasonable number of insurers who were interested in tendering to provide this cover. The market is at best thin, and quite possibly non-existent. Most of the insurers felt that they would not be able to set a definition of disability that would be able to determine claims on a basis that would not be open to dispute. The general reaction was that it would only be possible to insure a total benefit and not part of a benefit.

It is clear that the operation of any agreed arrangement needs to be modified to simplify administration, benefit definitions and insurance arrangements. The fact remains that the normal – and best – way to handle this would be to establish a superannuation scheme that provided additional death and disability benefits required in the event of death or disablement 24 hours a day. As you are aware, the 1997 permanent firefighters’ Award has now expired. However, the commitment to develop a new superannuation scheme for employees remains unfulfilled. The Union is not prepared to see that commitment abandoned, and your intentions with regard to this development are now formally sought.

If only examining the insurance issue, firefighters are beyond doubt a special case. It is simply untenable to maintain a regime in which workers are denied access to insurance, and therefore security, in the event that they may be killed or otherwise injured to the extent that they lose their job.

Further to the six areas requiring further discussion nominated by you yesterday, the Union also takes issue with the following additional issues:

(vii) definition of ‘operational duties’

As discussed above, the definition of ‘operational duties’ proposed by the Government yesterday is unacceptably narrow and vague to the extent that insurers will simply not contemplate working around it. Perhaps more importantly, it is also the case that it is a million miles away from providing an arrangement which meets the Government’s commitment to “no disparity in death and disability benefits for frontline firefighters”.

The Government has replaced the previously unacceptable “special risk” definition with an equally unacceptable “operational duties” definition. I can assure you that irrespective of any views held by the State Committee on this issue, there is absolutely no way the rank and file membership will accept the definition as proposed.

We have explored every possible avenue on this issue in good faith, but have always returned to the view that the only workable and/or acceptable definition remains as being “in the course of employment”.

(viii) Firefighter with permanent partial disability

Consistent with the Minister’s “no disparity” commitment, there must – at a bare minimum – be a pension available to those “frontline” firefighters who sustain a permanent and partial disability in the course of their employment. Anything short of such an arrangement would clearly fail the “no disparity” test.

There isn’t any room here for nuances – we either achieve “no disparity” or we do not.

(viii) SSF members excluded

During the course of our meeting on Monday morning, we questioned the insertion of an exclusion to State Superannuation Fund members within the definition of ‘firefighter’ at Clause 3 of the proposed Agreement. It follows that we were heartened to see the removal of that exclusion from within the ‘firefighter’ definition in your subsequent and latest proposal. Imagine then our dismay to turn the page only to find that the “Arrangements” heading under Part 2 had been extended to again exclude all non-SASS/FSS firefighters. Needless to say, the State Committee did not respond at all well to such a cynical pea-and-thimble exercise.

The Union maintains that any agreed arrangements should apply universally. Assuming such arrangements deliver “no disparity” then there should be no difficulty in doing so. Further to this point, the proposed Agreement fails to contemplate those firefighters who may not be members of any of the three state public sector superannuation schemes, but who may instead have taken out private superannuation arrangements. We imagine this is an oversight rather than a deliberate exclusion, but it will nonetheless need to be addressed.

(ix) health and fitness standards for firefighters

It probably goes without saying that the introduction of compulsory post-employment fitness standards for firefighters represents a landmark shift in ongoing employment requirements for not only firefighters, but for the civilian workforce generally. It follows that many concerns exist, not the least being the apparent desire of the Fire Brigades to introduce various “standards” of fitness rather than a single standard and the potential for protracted disputation given the very short period of three months which it is proposed the parties will have to reach agreement on the fitness issue generally.

The question of death and disability benefits must be resolved before the many issues surrounding compulsory health and fitness standards can be looked at.

(x) grievances and disputes mechanism

The Union has never held any enthusiasm for the Fire Brigades’ unilateral Grievance/Dispute Resolution Policy, and it follows that we do not support its use within the context of any agreed benefits and/or arrangements. Further discussion will therefore be necessary in order to develop a mutually agreeable mechanism.

The points raised above should not be seen as being either comprehensive or conclusive. Rather, they are intended to demonstrate the primary areas of disagreement between the parties at this juncture.

As discussed earlier, the rank and file membership at the meeting of August 13 determined that the Union’s industrial action should be lifted to allow a full and proper agreement to be developed and considered by the membership at a further meeting to be held August 27. Implicit in that determination was the view that industrial action should resume at that time in the event that such an agreement was either not developed, or was found to be unacceptable.

We remain committed of course to achieving a resolution rather than an industrial dispute, and to that end we look forward to meeting with you as soon as possible to discuss these matters further.

Yours faithfully,
(signed)
Chris Read
State Secretary

News

D&D – Latest Govt. Offer & Union Response

LATEST OFFER FROM THE GOVERNMENT, DATED 24/8/99

RESPONSE FROM THE UNION, DATED 25/8/99

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