Crown
Employees (Fire and Rescue NSW Firefighting Staff Death and Disability) Award
2012
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by New South
Wales Fire Brigade Employees Union, Industrial Organisation of
Employees.
(No. IRC 440 of 2012)
|
Before The Honourable
Mr Justice Haylen
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13 September 2012
|
AWARD
PART A -
INTRODUCTION, INTENTIONS AND COMMITMENTS, INDEX AND DEFINITIONS
Clause 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 2012".
1.2 The intentions
and commitments of this Award are to:
1.2.1 Provide benefits in
the event that an on duty or off duty injury results in the death or total and
permanent incapacity or partial and permanent incapacity of a firefighter.
1.2.2 Provide
rehabilitation and retraining in the event that on duty or off duty injury
results in a firefighter suffering partial and permanent incapacity.
1.2.3 Develop and
implement an agreed health and fitness programme for firefighters.
1.3 This Award shall
be in four parts as follows:
Part A - Introduction, Intentions and Commitments,
Index and Definitions
Part B - Arrangements for firefighters entitled to the
death and disability benefits prescribed by this Award.
Part C - Health and Fitness Programme
Part D - Disputes, Anti-discrimination, Leave Reserved
and Area, Incidence and Duration.
Clause 2. Index
Clause 1. Introduction, Intentions and Commitments
Clause 2. Index
Clause 3. Definitions
Clause 4. Death and Disability Superannuation Fund
Clause 5. Contributions to the Death and Disability
Superannuation Fund
Clause 6. Other Benefits Applicable to Firefighters
Clause 7. Permanent Firefighters - Pensions for "On
Duty" Death and Total and Permanent Incapacity
Clause 8. Permanent Firefighters - Lump Sum Payments for
"Off Duty" Death and Total and Permanent Incapacity
Clause 9. Rehabilitation and Retraining and Lump Sum
Payments for Permanent Firefighters who suffer Partial and Permanent Incapacity
Clause 10. Retained Firefighters - Pensions for "On
Duty" Death and Total and Permanent Incapacity
Clause 11. Retained Firefighters -Lump Sum Payments for
"Off Duty" Death and Total and Permanent Incapacity
Clause 12. Lump Sum Payments for Retained Firefighters
who suffer Partial and Permanent Incapacity
Clause 13. Assessment of Entitlement to Benefits
Clause 14. Health and Fitness
Clause 15. Grievance Mechanism
Clause 16. Anti-Discrimination
Clause 17. Leave Reserved
Clause 18. Area, Incidence, Duration and Parties Bound
Annexure A - Partial and Permanent Incapacity Benefits
Payment Scale
Clause 3. Definitions
"Actual retained earnings" means the average
annual remuneration received by a retained firefighter calculated over either
the preceding twelve months or five years, whichever is the greater, provided
that any periods of special leave without pay, unpaid leave and/or suspension
shall not be taken into account when calculating the periods of twelve months
and five years.
"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.
"Death and Disability Superannuation Fund"
means the superannuation fund established in accordance with Part B of 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 as a Department of the Government under the Fire Brigades Act 1989
and a Division of the Department of Attorney General and Justice under the Public
Sector Employment and Management Act 2002.
"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.
"Full pay" means the permanent firefighter’s
remuneration at the date of his/her injury, including any per rostered shift or
weekly allowance that he/she was receiving at the date of his/her injury, or
such higher remuneration to which the firefighter becomes entitled pursuant to
that Award. Provided that where a permanent firefighter is at the date of
his/her injury on any form of leave, his/her initial full pay shall be the
remuneration (subject to the exclusions referred to within this definition)
that would otherwise have been paid to the firefighter had he/she not been on
such leave.
"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.
"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.
"Off duty injury" means any personal injury
or disease which is not an on duty injury.
"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
pre-injury 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 2011.
"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 2011.
"Retained firefighter’s deemed salary" means the
hourly rate of pay of a retained Captain multiplied by a factor of 2088.
"Retained firefighter's primary employment"
means employment with an employer other than FRNSW. In order for a retained
firefighter's employment with an employer other than FRNSW to be eligible as
primary employment for the purposes of payment of benefits pursuant to
subclause 12.4 of this Award, the primary employment must be held as at the
date of the on duty injury, and must be permanent employment of an average of
at least 30 hours per week.
"Salary" means, in the case of a permanent
firefighter holding the rank of Recruit Firefighter, Firefighter Level 1,
Firefighter Level 2, Qualified Firefighter, Senior Firefighter, Leading
Firefighter, Station Officer Level 1, Station Officer Level 2 or Inspector, the
firefighter’s "Total Weekly Rate" as set out at Table 1 of Part D of
the Crown Employees (Fire and Rescue NSW
Permanent Firefighting Staff) Award 2011 multiplied by 52.1785 and, in
the case of a permanent firefighter holding the rank of Superintendent or Chief
Superintendent, the per annum amount set out at Table 1 of Part D of that Award
provided that for the purposes of this Award, the salary of an employee holding
an Operational Support position shall be that applicable to the employee’s
substantive operational rank.
"Spouse" means a person who falls within the
definition of "spouse" or "de facto partner" in 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.
"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.
Part B
ARRANGEMENTS FOR
FIREFIGHTERS ENTITLED TO THE DEATH AND DISABILITY BENEFITS PRESCRIBED BY THIS
AWARD
Clause 4. Death and
Disability Superannuation Fund
4.1 The NSW Fire
Brigades will establish, with the agreement of the FBEU, a Death and Disability
Superannuation Fund to pay the benefits prescribed by Clauses 7 and 10 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.
4.2 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:
4.2.1 tax liabilities
in the same circumstances and on the same bases as prescribed in section 61RA
of the Superannuation Act 1916;
4.2.2 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.
Clause 5.
Contributions to the Death and Disability Superannuation Fund
5.1 Permanent
firefighters who are covered by FSS or who have elected under section 10 of the
First State Superannuation Act 1992 to make other arrangements shall
contribute 1.5 per cent of their salary to the Death and Disability
Superannuation Fund.
5.2 Permanent
firefighters who are contributors to SASS but who do not contribute to SASS for
additional benefit cover shall contribute 1.5 per cent of their salary to the
Death and Disability Superannuation Fund.
5.3 Permanent
firefighters who are contributors to SASS and who contribute for additional
benefit cover and who elect to relinquish that cover shall contribute 1.5 per
cent of their salary to the Death and Disability Superannuation Fund.
5.4 Permanent
firefighters who:
5.4.1 are contributors
to SASS; and
5.4.2 contribute to
SASS for additional benefit cover; and
5.4.3 elect not to
relinquish that additional benefit cover,
may elect to contribute 0.5 per cent of their salary to
the Death and Disability Superannuation Fund in order to be entitled to receive
the payments prescribed by this Award at subclauses7.2 and 8.3 in relation to
death or total and permanent incapacity and at Clause 9 in relation to partial
and permanent incapacity only.
5.5 Permanent
firefighters who:
5.5.1 are contributors
to SASS; and
5.5.2 contribute to SASS
for additional benefit cover; and
5.5.3 elect not to
relinquish that additional benefit cover,
may elect to not be covered by this Award. Such firefighters shall not be eligible to
receive a pension or lump sum payment prescribed by this Award.
5.6 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.
5.7 Notwithstanding
the provisions of the Crown Employees (Fire and Rescue NSW Permanent
Firefighting Staff) Award 2011 and the Crown Employees (Fire and Rescue NSW
Retained Firefighting Staff) Award 2011, 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.
5.8 A permanent
firefighter who is a contributor to SASS and who contributes for additional
benefit cover shall within three months of commencing employment make an
election on a "once only" basis, whether they wish to retain or
relinquish that additional benefit cover.
5.9 Subject to
subclause 5.10, FRNSW shall contribute $18.82 per fortnight to the Death and
Disability Superannuation Fund in respect of each retained firefighter.
5.10 FRNSW shall
contribute $6.27 per fortnight to the Death and Disability Superannuation Fund
in respect of each retained firefighter 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.
5.11 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 Part.
5.12 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.
5.13 FRNSW shall
deduct the contributions that firefighters are required or elect to make
pursuant to this clause from their salaries and forward such contributions to
the Death and Disability Superannuation Fund.
Clause 6. Other
Benefits Applicable to Firefighters
With the exception of the offsets prescribed by this
Award, 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.
Clause 7. Permanent
Firefighters - Pensions for "on Duty" Death and Total and Permanent
Incapacity
7.1 In the case of
those permanent firefighters who contribute to the Death and Disability
Superannuation Fund in accordance with subclauses 5.1, 5.2 or 5.3 of this
Award, a pension in accordance with this subclause shall be payable from that
Fund in the event that an on duty injury results in a permanent firefighter’s
death or a permanent firefighter suffering total and permanent incapacity.
7.2 In the event
that an on duty injury results in the death or total and permanent incapacity
of a permanent firefighter for whom the Death and Disability Superannuation Fund
is receiving contributions pursuant to subclause 5.4, a lump sum payment of
$15,000 shall be paid from that Fund to the permanent firefighter or his/her
estate.
7.3
7.3.1 A permanent firefighter
who becomes totally and permanently incapacitated shall be paid a fortnightly
pension calculated in accordance with subclause 7.3.2.
7.3.2 Pension = {S/260
+ (9xN)} x $5.50
Where
S means
the permanent firefighter’s salary on his/her last day of service with FRNSW
N is the
number derived from the calculation of a/b where:
a is the
last published Consumer Price Index (All Groups) for Sydney; and
b is:
(a) the number
56.45; or
(b) if the
Australian Statistician changes the reference base for the Consumer Price Index
(All Groups Index) for Sydney, the number used in SSS.
Where the result of the calculation {S/260 + (9xN)} is
not a whole number the result is to be rounded up to the next whole number.
7.3.3 The fortnightly
pension payable to the spouse of a permanent firefighter who, whilst still
employed, dies as a consequence of an on-duty injury shall be two-thirds of the
fortnightly pension that would have been payable to the permanent firefighter
as calculated in accordance with subclause 7.3.2 above.
7.3.4 The fortnightly
pension payable to the spouse of a former permanent firefighter who dies while
receiving a pension under this Award shall be two-thirds of that former
permanent firefighter’s pension at the time of death.
7.3.5 Children’s
pensions are payable on the same basis as in SSS.
7.3.6 Pensions may be
commuted on the same basis as applicable to SSS pensions.
7.3.7 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 permanent firefighter who does not have a
spouse at the time of his or her death. In such cases, the permanent
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 subclause 8.2
of this Award, provided that if the age of the permanent firefighter at the
time of his/her death was 65 years or more, then the benefit shall be a lump
sum payment equivalent to the permanent firefighter’s salary.
7.3.8 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 of the offset as
calculated under the Award.
7.3.9 The value of a
primary or reversionary pension is subject to reduction as determined by the
actuary where the relevant offset amount prescribed by subclause 7.4 is not
paid into the Death and Disability Superannuation Fund.
7.3.10 To avoid doubt,
the pensions payable under this clause shall be paid for the life of the
pensioner and indexed on the same basis as SSS pensions.
7.4 In the case of
pensions payable under subclause 7.3, the following offsets shall be
applicable:
7.4.1 For non-SASS
members, the offset shall be an amount that the actuary calculates as
representing the compulsory employer contributions made by the NSW Fire
Brigades in respect of the permanent firefighter plus interest on that amount.
7.4.2 For SASS members,
the offset equals the total of the SASS employer-financed benefit and the SANCS
benefit.
Clause 8. Permanent
Firefighters - Lump Sum Payments for "Off Duty" Death and Total and
Permanent Incapacity
8.1 The lump sum
payments prescribed by this clause are payable from the Death and Disability
Superannuation Fund.
8.2 In the event
that an off duty injury results in the death or total and permanent incapacity
of a permanent firefighter who contributes to the Death and Disability
Superannuation Fund in accordance with subclauses 5.1, 5.2 or 5.3 of this
Award, a lump sum payment in accordance with the scale set out in subclause 8.4
of this Award shall be paid to the permanent firefighter or his/her estate.
8.3 In the event
that an off duty injury results in the death or total and permanent incapacity
of a permanent firefighter of less than 65 years of age for whom the Death and
Disability Superannuation Fund is receiving contributions pursuant to subclause
5.4, a lump sum payment of $15,000 shall be paid to the permanent firefighter
or his/her estate.
8.4 For the purposes
of this subclause, a permanent 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 the
NSW Fire Brigades or at such earlier date as may be determined by the Trustee
of the Death and Disability Superannuation Fund.
|
AGE
|
LUMP SUM
|
|
|
|
|
Less than 61 years of age
|
$350,000
|
|
At age 61 to less than 62
years of age
|
$280,000
|
|
At age 62 to less than 63
years of age
|
$210,000
|
|
At age 63 to less than 64
years of age
|
$140,000
|
|
At age 64 to less than 65 years
of age
|
$70,000
|
Clause 9.
Rehabilitation and Retraining and Lump Sum Payments for Permanent
Firefighters Who Suffer Partial and Permanent Incapacity
9.1 The lump sum payments
prescribed by this clause are payable by way of compensation for loss of
earning capacity caused by the partial and permanent incapacity by FRNSW.
9.2 A permanent
firefighter who suffers partial and permanent incapacity as the result of an on
duty injury shall receive extensive rehabilitation/retraining for up to two
years, leading to redeployment to alternative duties. If redeployment within FRNSW is not possible, the employment of
the firefighter may be terminated and, in such circumstances, the firefighter
shall receive a lump sum payment in accordance with Annexure A to this Award.
9.3 A permanent
firefighter who suffers partial and permanent incapacity as the result of an
off duty injury shall receive extensive rehabilitation/retraining for up to two
years, leading to redeployment to alternative duties. Such a firefighter shall
not be entitled to any benefit conferred by the provisions of the Workers
Compensation Act 1987 or the Workplace Injury Management and Workers
Compensation Act 1998 unless that benefit is conferred upon the firefighter
by such statutes. If redeployment within FRNSW is not possible, the employment
of the firefighter may be terminated. If such termination occurs prior to the
expiry of the two years of rehabilitation/retraining, the firefighter shall be
paid a lump sum payment equivalent to the unexpired portion of the two years
full pay or full pay to age 60 (whichever is the lesser).
9.4 The objective of
the rehabilitation/retraining programme, which is to be on full pay, is to
place every permanent firefighter who suffers partial and permanent incapacity
in a suitable position within FRNSW. All reasonable efforts will be made by
FRNSW to ensure that a permanent firefighter who suffers partial and permanent
incapacity is so placed, including by identifying potential employment
opportunities as soon as practicable and directing the
rehabilitation/retraining programme 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).
9.5 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 his or her partial and permanent incapacity, is undergoing the
rehabilitation/retraining programme, 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.
9.6 An incapacitated
firefighter’s employment 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.
9.7 The parties
agree that it is anticipated that the rehabilitation/retraining programme and
forward planning associated with the programme will minimise the likelihood
that any incapacitated firefighter will be terminated because at the end of the
rehabilitation/retraining programme, a suitable position is not available.
Clause 10. Retained Firefighters - Pensions for "on
Duty" Death and Total and Permanent Incapacity
10.1 Retained
firefighters 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 benefits set out at
subclause 10.3. A lump sum payment of $15,000 shall be paid to such retained
firefighters or their estate in the event that an on duty injury results in
their death or their suffering total and permanent incapacity.
10.2 In the case of
retained firefighters who contribute to the Death and Disability Superannuation
Fund (other than those referred to in subclause 10.1) a pension in accordance
with this subclause shall be payable from that Fund in the event that an on
duty injury results in their death or their suffering total and permanent
incapacity.
10.3
10.3.1 A
retained firefighter who becomes totally and permanently incapacitated shall be
paid a fortnightly pension calculated in accordance with subclause 10.3.2.
10.3.2 Pension
= {S/260 + (9xN)} x $5.50
Where
S means
the retained firefighter’s deemed salary on his/her last day of service with
FRNSW
N is the number
derived from the calculation of a/b where:
a is the
last published Consumer Price Index (All Groups) for Sydney; and
b is:
(a) the number
56.45; or
(b) if the
Australian Statistician changes the reference base for the Consumer Price Index
(All Groups Index) for Sydney, the number used in SSS.
Where the result of the calculation {S/260 + (9xN)} is
not a whole number the result is to be rounded up to the next whole number.
10.3.3 The
fortnightly pension payable to the spouse of a retained firefighter who, whilst
still employed, dies as a consequence of an on-duty injury shall be two-thirds
of the fortnightly pension that would have been payable to the retained
firefighter as calculated in accordance with subclause 10.3.2 above.
10.3.4 The
fortnightly pension payable to the spouse of a former retained firefighter who
dies while receiving a pension under this Award shall be two-thirds of that
former retained firefighter’s pension at the time of death.
10.3.5 Children’s
pensions are payable on the same basis as in SSS.
10.3.6 Pensions
may be commuted on the same basis as applicable to SSS pensions.
10.3.7 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 retained firefighter who does
not have a spouse at the time of his or her death. In such cases, the retained
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 subclause 11.2 of
this Award, provided that if the age of the retained firefighter at the time of
his/her death was 65 years or more, then the benefit shall be a lump sum
payment equivalent to the retained firefighter’s deemed salary.
10.3.8 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 of the
offset as calculated under the Award.
10.3.9 The
value of a primary or reversionary pension is subject to reduction as
determined by the actuary where the relevant offset amount prescribed by
subclause 10.4 is not paid into the Death and Disability Superannuation Fund.
10.3.10 To avoid
doubt, the pensions payable under this clause shall be paid for the life of the
pensioner and indexed on the same basis as SSS pensions.
10.4 In the case of
pensions payable under subclause 10.3, the offset shall be an amount that the
actuary calculates as representing the compulsory employer contributions made
by FRNSW in respect of the retained firefighter plus interest on that amount.
Clause 11. Retained
Firefighters - Lump Sum Payments for "Off Duty" Death and Total and
Permanent Incapacity
11.1 The lump sum
payments 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 retained firefighter, a lump sum payment in
accordance with the scale set out in subclause 11.3 shall be paid to the
retained firefighter or his/her estate.
11.3 For the purposes
of this subclause, a retained 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
|
LUMP SUM
|
|
Less than 61 years of age
|
$350,000
|
|
At age 61 to less than 62
years of age
|
$280,000
|
|
At age 62 to less than 63
years of age
|
$210,000
|
|
At age 63 to less than 64
years of age
|
$140,000
|
|
At age 64 to less than 65
years of age
|
$70,000
|
11.4 Retained
firefighters 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 coveror who are SASS members with additional
benefit cover $15,000 shall be paid to such retained firefighters or their
estate in the event that an off duty injury results in their death or their
suffering total and permanent incapacity.
Clause 12. Lump Sum Payments for Retained Firefighters Who
Suffer Partial and Permanent Incapacity
12.1 The lump sum
payments prescribed by this clause are payable by FRNSW.
12.2 FRNSW may
terminate the employment of a retained firefighter who suffers partial and
permanent incapacity. An adequate opportunity will be given to the retained
firefighter concerned and the FBEU (unless the firefighter expressly declines
to agree to the FBEU being informed) to consider FRNSW’s intention to terminate
the employment of a retained firefighter.
12.3 In the event that
the employment of a retained firefighter is terminated because the firefighter
suffers partial and permanent incapacity, the firefighter shall be paid a lump
sum payment, by way of compensation for loss of earning capacity caused by the
partial and permanent incapacity, in accordance with this clause.
12.4 A retained
firefighter whose employment is terminated because the retained firefighter
suffers partial and permanent incapacity as the result of an on duty injury shall
be paid a lump sum payment in accordance with Annexure A to this Award with
salary to be determined as follows:
12.4.1 where there is a
loss of FRNSW employment only - on the basis of the retained firefighter’s
actual retained earnings;
12.4.2 where there is a
loss of FRNSW employment and the retained firefighter’s primary employment - on
the basis of the retained firefighter’s deemed salary on the date that he/she
ceases to be employed by FRNSW.
12.5 A retained
firefighter whose employment is terminated because the retained firefighter
suffers partial and permanent incapacity as the result of an off duty injury
shall be paid a lump sum payment equivalent to two years of the retained
firefighter’s actual retained earnings, or actual retained earnings to age 60
(whichever is the lesser).
Clause 13. Assessment
of Entitlement to Benefits
13.1 Entitlement to
the benefits to be provided by FRNSW pursuant to this Award shall be assessed
through a mechanism to be agreed between the parties. The mechanism shall
provide that any dispute as to the entitlement of a firefighter may be referred
to the Industrial Relations Commission of New South Wales for final
determination.
13.2 Entitlement to
receive a pension or lump sum 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 is created.
13.3 To avoid doubt, a
firefighter can receive either a total and permanent incapacity benefit, or a
partial and permanent incapacity benefit, but not both.
13.4 Subject to
subclause 13.2, any dispute as to the entitlement to receive a pension or lump
sum payment 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.
PART C
HEALTH AND FITNESS
PROGRAMME
Clause 14. Health and
Fitness
14.1 The parties agree
and accept the need for a compulsory health and fitness programme that is
underpinned by practical support, education and assistance programs provided by
FRNSW.
14.2 The parties agree
to develop and implement a health and fitness programme in circumstances in
which a member of the Industrial Relations Commission will oversight their
progress and set appropriate time frames, subject to the proviso that the
parties specifically agree to the inclusion of a sub-clause in the following
terms:
"A firefighter who fails to meet the prescribed
health and fitness standards will be given an appropriate period of time, as
determined on medical advice, to achieve the level of health and fitness
required. Subsequently, a firefighter who fails the medical reassessment or who
is deemed on medical advice not capable of regaining or maintaining an
acceptable level of fitness will be rehabilitated to another position in
accordance with FRNSW policy."
14.3 Negotiations will
also commence on a proposed return to work policy, which shall include agreed
alternative duties provisions. The content of any FRNSW policy in this regard
will form part of health and fitness negotiations.
14.4 Health and
fitness standards will be subject to negotiation and agreement, but shall apply
to all firefighters with no distinction based upon rank.
PART D
GRIEVANCE
MECHANISM, ANTI-DISCRIMINATION AND AREA. INCIDENCE, DURATION AND PARTIES BOUND
Clause 15. Grievance Mechanism
If an issue gives rise to a dispute it shall be dealt
with in accordance with the Dispute Avoidance Procedures in Clause 35 of the
Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2011.
Clause 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.
Clause 17. Leave
Reserved
Leave is reserved to the parties generally to apply as
they may be advised in respect of:
17.1 any adjustment under
Commonwealth legislation governing superannuation which alters preservation
rights at age 60 or in the event that any legislative change necessary for the
implementation of this Award does not occur;
17.2 the definition of
"actual retained earnings" at Clause 3; and
17.3 Clause 9 -
Rehabilitation and Retraining and Lump Sum Payments for Permanent Firefighters
who suffer Partial and Permanent Incapacity.
Clause 18. Area,
Incidence, Duration and Parties Bound
18.1 This Award shall
apply to all permanent firefighters and retained firefighters, as defined in
Clause 3, Definitions, who are employed by FRNSW.
18.2 This Award shall
rescind and replace the Crown Employees (NSW Fire Brigades Firefighting Staff
Death and Disability) Award 2009 published 26 June 2009 (368 IG 364).
18.3 This Award shall
be binding upon the FBEU and FRNSW.
18.4 This Award shall
take effect on and from 22 March 2012 and shall remain in force until 21 March
2014.
Annexure A
PARTIAL AND
PERMANENT INCAPACITY BENEFITS PAYMENT SCALE
|
Age at termination
|
Benefit as multiple
of salary
|
|
|
|
|
20
|
8.33
|
|
21
|
8.22
|
|
22
|
8.11
|
|
23
|
7.99
|
|
24
|
7.87
|
|
25
|
7.75
|
|
26
|
7.62
|
|
27
|
7.49
|
|
28
|
7.35
|
|
29
|
7.21
|
|
30
|
7.07
|
|
31
|
6.92
|
|
32
|
6.76
|
|
33
|
6.61
|
|
34
|
6.44
|
|
35
|
6.28
|
|
36
|
6.11
|
|
37
|
5.93
|
|
38
|
5.75
|
|
39
|
5.56
|
|
40
|
5.36
|
|
41
|
5.16
|
|
42
|
4.96
|
|
43
|
4.75
|
|
44
|
4.53
|
|
45
|
4.30
|
|
46
|
4.07
|
|
47
|
3.83
|
|
48
|
3.59
|
|
49
|
3.34
|
|
50
|
3.08
|
|
51
|
2.81
|
|
52
|
2.53
|
|
53
|
2.25
|
|
54
|
1.95
|
|
55
|
1.65
|
|
56
|
1.34
|
|
57
|
1.02
|
|
58
|
0.69
|
|
59
|
0.35
|
|
60
|
0.00
|
AGREED
MECHANISM FOR ASSESSMENT OF ENTITLEMENT TO BENEFITS
PROVIDED BY FRNSW
PURSUANT TO SUBCLAUSE 13.1
1. This mechanism
will not apply, and a firefighter may not therefore be considered partially and
permanently incapacitated, whilst ever a firefighter has a workers compensation
claim in dispute. Conversely, this mechanism will apply in all other instances
listed at point 2.
2. The procedures
set out at points 3 to 6 inclusive will apply if:
(a) FRNSW has reason
to believe that:
(i) a firefighter
may be unfit for duty, permanently or otherwise, and that firefighter
disagrees; or
(ii) 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
(b) A firefighter
has reason, supported by medical information, to believe that:
(i) the firefighter
may be unfit for duty, permanently or otherwise, and FRNSWdisagrees; or
(ii) it may be
necessary to impose certain medical/physical conditions orrestrictions on the
firefighter, permanently or otherwise, and FRNSWdisagrees with the need for
some or all such conditions or restrictions; or
(c) A firefighter
has already been assessed as defined at points 7(b), 7(c) or 7(d)
andsubsequently obtains more contemporary information which suggests that they
maybe fit or that their requirements or restrictions should be changed, and
FRNSW disagrees.
3. If the medical
assessment is initiated by FRNSW at point 2(a) 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.
4. If FRNSW
believes at any point in time that a 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 leave pending the determination of their condition in accordance
with this mechanism. A firefighter who is stood down from their ordinary duties
in accordance with this point will continue to receive"full pay", as
defined by the Award, 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 point 6below.
5. Whether the
medical assessment is initiated by FRNSW at point 2(a) or a firefighter at
point2(b), 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:
(a) the time, date
and location of the appointment;
(b) the inherent
requirements of the firefighter’s ordinary duties and the firefighter’stypical
work environment(s);
(c) the
health-related issue(s), if any, which FRNSW believes may be affecting work
performance;
(d) the manner in
which it is believed work performance has been/is being and/or maybe affected,
including evidence where available;
(e) 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
(f) a summary of
all relevant documents in checklist format.
6. 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.
7. 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:
(a) fit to perform
the firefighter’s ordinary duties without any requirements or restrictions; or
(b) fit to perform
the firefighter’s ordinary duties with specified requirements or restrictions;
or
(c) temporarily
unfit to perform the firefighter’s ordinary duties but fit to perform
alternative duties, either with or without specified requirements or
restrictions; or
(d) temporarily
unfit to perform any FRNSW duties; or
(e) permanently
unfit to perform the firefighter’s ordinary duties.
8. FRNSW will
write to the firefighter within 7 days of receipt of the assessing medical
practitioner’s report stating that it has either:
(a) wholly accepted
the medical practitioner’s report; or
(b) partially
accepted the medical practitioner’s report, together with the reason(s) for
itsnon-acceptance of the relevant part(s); or
(c) accepted none of
the medical practitioner’s report and its reasons for same.
9. A firefighter
may request that FRNSW review its determination at point 8 by way of report to
the Commissioner. The Commissioner will consider all previous reports and
documentation relating to the matter, together with any additional information
which the firefighter may supply, and will within 14 days supply the
firefighter concerned with a written and final FRNSW determination of the
matter.
10. If the
firefighter does not agree with the Commissioner’s determination at point 9
then the matter may be referred to the Industrial Relations Commission for
final determination.
11. A firefighter
who is found to be temporarily unfit as per points 7(c) or 7(d) 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.
12. 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
(which ever occurs first) will be referred for medical re-assessment.
13. The
determination as to whether a firefighter’s permanent incapacity is the result
of an on duty injury or an off duty injury will be made by Suncorp as soon as
possible following confirmation of the firefighter’s permanent incapacity or,
in the event that Suncorp is no longer able or willing to do so, by some other
suitably qualified independent assess or agreed between the parties, provided
that any dispute as to the appointment of an independent assessor or the
entitlement of a firefighter suffering partial and permanent incapacity may be
referred to the Industrial Relations Commission for final determination.
14. FRNSW will bear
the cost of any assessment conducted by a medical practitioner pursuant to
points 5, 6 and 7, and of any independent assessment conducted at point 13.
15. To avoid doubt,
the provision within subclauses 9.4, 9.5, 9.6 and 12.2 of the Award where by
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 those subclauses until such time
as the FBEU has been notified in writing and been given adequate opportunity to
confer with the firefighter.
16. 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.
17. A firefighter
who has been confirmed 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.
18. The employment
of a firefighter who is confirmed as suffering partial and permanent incapacity
will be terminated in accordance with subclause 9.6 of the Award or otherwise
upon such firefighter’s consent or request.
19. For the purpose
of this mechanism, "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.
W.
R. HAYLEN J.
____________________
Printed by
the authority of the Industrial Registrar.