Crown Employees (Fire and Rescue NSW Firefighting
Staff Death and Disability) Award 2015
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by New South Wales Fire Brigade Employees Union, Industrial Organisation of Employees.
(No. IRC 280 of 2014)
Before The Honourable Justice Walton, President
|
16 February 2015
|
AWARD
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 2015".
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.
Clause 2. Index
Clause 1 - Introduction,
Intentions and Commitments
Clause 2 - Index
Clause 3 - Definitions
Clause 4 - Health
and Fitness Program
Clause 5 - Death
and Disability Superannuation Fund
Clause 6 - Contributions
to the Death and Disability Superannuation Fund
Clause 7 - Other
Benefits Applicable to Firefighters
Clause 8 - Assessment
of Fitness for Duty and Permanent Incapacity
Clause 9 - "On
Duty" Death Benefits
Clause 10 - "On
Duty" Total and Permanent Incapacity Benefits
Clause 11 - "Off
Duty" Death and Total and Permanent Incapacity Benefits
Clause 12 - Rehabilitation
and Retraining for Permanent Firefighters who suffer Partial and Permanent
Incapacity
Clause 13 - Partial
and Permanent Incapacity Benefits
Clause 14 - Assessment
of Entitlement to Benefits
Clause 15 - Grievance
Mechanism
Clause 16 - Anti-Discrimination
Clause 17 - Area,
Incidence, Duration and Parties Bound
Annexure A - Principles
and Procedures of the Firefighters’ Health and Fitness Program
Clause 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.
Clause 4. Health
and Fitness Program
4.1 The parties
agree and accept the need for a compulsory health and fitness program that is
underpinned by practical support, education and assistance provided by FRNSW.
4.2 The parties
agree to develop and implement the health and fitness program 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 that:
4.2.1 the health and
fitness program will be developed and implemented within the life of this
Award;
4.2.2 the health and
fitness program will be developed and implemented in accordance with the
principles and procedures detailed in Annexure A;
4.2.3 health and
fitness standards will be subject to negotiation and agreement, but shall apply
to all firefighters with no distinction based upon rank; and
4.2.4 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 permanent 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 Clause 12.
Clause 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.
Clause 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 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 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.
Clause 7. Other
Benefits Applicable to Firefighters
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 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 subclauses 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 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 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.
8.4 Whether the
medical assessment is initiated by FRNSW at subclause 8.1.1 or a firefighter at
subclause 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 subclause 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 subclauses 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.
Clause 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 Clause 11.
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.
Clause 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 Clause 11.
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.
Clause 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
|
18-59
|
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 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.
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.
Clause 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.
Clause 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 Subject to
Clause 12, 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
subclauses 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
|
18-52
|
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
|
Clause 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 at Clause 8.
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 benefit under Clause 13.
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 8.8, 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.
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.
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
fulfillment 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. 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 2012 published 5 October 2012 (374 IG 1271).
17.3 This Award shall
be binding upon the FBEU and FRNSW.
17.4 This Award shall
take effect on and from 20 February 2015 and shall remain in force until 16
February 2017.
Annexure A
Principles and Procedures of the
Firefighters’ Health and Fitness Program
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.
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.
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.
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.
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.
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.
Key Strategies
Infrastructure
Develop the physical and organisational infrastructure
needed to implement program components. This includes support structure (eg.
health/fitness and return to work professionals), related systems and
procedures (eg. data management, pathways for rehabilitation), resources (eg.
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 (eg. 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.
Health and Fitness Checks
The health and fitness program will include regular
health and fitness checks for firefighters by the firefighter’s nominated
medical practitioner in accordance with an information pack, which will be
developed by FRNSW in consultation with the FBEU, which shall include the
firefighters’ prescribed health and fitness standards, the inherent
requirements of the firefighter’s ordinary duties and the firefighter’s typical
work environment(s), a template medical report, a lifestyle questionnaire and
the tests to be conducted as part of the health and fitness check.
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.
The health and fitness checks will include:
Lifestyle questionnaire and occupational history
(including exposures);
Medical examination (primary focus on cardiovascular,
respiratory and musculoskeletal systems);
Pathology testing (general health markers; eg lipid
profile, blood glucose level);
Urinalysis;
Twelve lead ECG;
Cardiac Risk Profile (risk score based on Framingham
study);
Spirometry (lung function);
Vision;
Audiometry (hearing);
Other medical assessments as indicated;
Fitness Assessment
Muscular strength and endurance; and
Cardiovascular Fitness.
The health and fitness checks will 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 medical
practitioner who is unable to conduct any required or indicated medical
assessment should include this in their report. FRNSW will ensure that the
health and fitness checks and any consequent referrals will be arranged and
conducted without any cost to the firefighter.
Firefighters who attend a health and fitness 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 and fitness check.
The firefighter’s nominated medical practitioner will
forward their report on the firefighter’s health and fitness 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 and fitness 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.
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. 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.
Where a medical issue is identified during a health and
fitness check, the health risk will be assessed against the inherent
requirements of the firefighter’s job (safety critical).
The results of the health and fitness 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.
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.
M. J. WALTON J , President
____________________
Printed by
the authority of the Industrial Registrar.