Crown
Employees (NSW Fire Brigades Firefighting Staff Death and Disability) Award
2009
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by New South
Wales Fire Brigade Employees Union, Industrial Organisation of Employees.
(No. IRC 381 of 2009)
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Before The Honourable
Justice Kavanagh
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7 April 2009
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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 (NSW Fire Brigades Firefighting Staff
Death and Disability) Award 2009".
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 New South Wales Fire Brigade
Employees’ Union.
"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.
"NSW Fire Brigades" means the New South Wales Fire
Brigades, established as a Department of the Government under the Fire
Brigades Act 1989 and a Department under the Public Sector Employment
and Management Act 2002.
"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 the NSW Fire Brigades.
"Permanent Firefighter" has the same meaning as
‘employee’ under the Crown Employees (NSW Fire Brigades Permanent Firefighting
Staff) Award 2008.
"Police Death and Disability Award" means the
Crown Employees (Police Officers Death and Disability) Award 2005 and its
successors.
"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 (NSW Fire Brigades Retained Firefighting
Staff) Award 2008.
"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 the NSW Fire Brigades. In order for a
retained firefighter's employment with an employer other than the NSW Fire
Brigades 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 (NSW Fire Brigades Permanent Firefighting Staff) Award 2008
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 superannuation pensions and lump sum payments
prescribed by clauses 7, 8, 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.
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 the NSW Fire Brigades 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 subclauses 7.2 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 (NSW Fire Brigades Permanent Firefighting
Staff) Award 2008 and the Crown Employees (NSW Fire Brigades Retained
Firefighting Staff) Award 2008, 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, the NSW Fire Brigades shall contribute $16.56 per fortnight to
the Death and Disability Superannuation Fund in respect of each retained
firefighter.
5.10 The NSW Fire
Brigades shall contribute $5.52 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 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 or who is eligible
for benefits prescribed in the Police Death and Disability Award.
5.11 The NSW Fire
Brigades 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 The NSW Fire
Brigades 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
$13,000 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
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Where
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S
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means the permanent firefighter’s salary on his/her last
day of service with the NSW
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Fire Brigades
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N
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is the number derived from the calculation of a/b where:
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a
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is the last published Consumer Price Index (All Groups)
for Sydney; and
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b
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is:
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(a)
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the number 56.45; or
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(b)
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if the Australian Statistician changes the reference base
for the Consumer Price Index
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(All Groups Index) for Sydney, the number used in SSS.
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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 $13,000 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.
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Age
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Lump Sum
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Less than 61 years of age
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$310,000
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At age 61 to less than 62 years of age
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$248,000
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At age 62 to less than 63 years of age
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$186,000
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At age 63 to less than 64 years of age
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$124,000
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At age 64 to less than 65 years of age
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$62,000
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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 the NSW
Fire Brigades.
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 the NSW Fire Brigades 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 the NSW Fire Brigades 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 the NSW Fire Brigades. All reasonable efforts
will be made by the NSW Fire Brigades 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 the NSW
Fire Brigades 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 the NSW Fire Brigades 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 the NSW Fire Brigades’ 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) or who are LGSS or EISS Division B "Retirement
Scheme" members with additional benefit cover or who are SASS members with
additional benefit cover or who are eligible for benefits prescribed in the
Police Death and Disability Award shall not be entitled to the benefits set out
at subclause 10.3. A lump sum payment of $13,000 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
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Where
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S
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means the retained firefighter’s deemed salary on his/her
last day of service with the
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NSW Fire Brigades
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N
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is the number derived from the calculation of a/b where:
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a
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is the last published Consumer Price Index (All Groups)
for Sydney; and
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b
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is:
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(a)
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the number 56.45; or
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(b)
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if the Australian Statistician changes the reference base
for the Consumer Price Index
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(All Groups Index) for Sydney, the number used in SSS.
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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 the NSW Fire Brigades 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 the
NSW Fire Brigades or at such earlier date as may be determined by the Trustee
of the Death and Disability Superannuation Fund.
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Age
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Lump Sum
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Less than 61 years of age
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$310,000
|
|
At age 61 to less than 62 years of age
|
$248,000
|
|
At age 62 to less than 63 years of age
|
$186,000
|
|
At age 63 to less than 64 years of age
|
$124,000
|
|
At age 64 to less than 65 years of age
|
$62,000
|
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) or who are LGSS or EISS Division B "Retirement
Scheme" members with additional benefit cover or who are SASS members with
additional benefit cover or who are eligible for benefits prescribed in the
Police Death and Disability Award shall not be entitled to the benefits set out
at subclause 11.3. A lump sum payment of $13,000 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 the NSW Fire Brigades.
12.2 The NSW Fire
Brigades 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 the NSW Fire Brigades’
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 NSW Fire Brigades employment only - on the basis of the
retained firefighter’s actual retained earnings;
12.4.2 where
there is a loss of NSW Fire Brigades 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 the NSW Fire Brigades.
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 the NSW Fire Brigades 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 programmes provided
by the NSW Fire Brigades.
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 the NSW Fire Brigades 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 NSW Fire Brigades 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, LEAVE RESERVED 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 (NSW Fire Brigades Permanent Firefighting Staff) Award 2008.
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.
NOTES
-
(a) Employers and
employees may also be subject to Commonwealth anti-discrimination legislation.
(b) Section 56(d) of
the Anti-Discrimination Act 1977
provides:
“Nothing in this Act affects … any other act or
practice of a body established to propagate religion that conforms to the
doctrines of that religion or is necessary to avoid injury to the religious
susceptibilities of the adherents of that religion.”
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 the NSW Fire Brigades.
18.2 This Award shall
rescind and replace the Crown Employees (NSW Fire Brigades Firefighting Staff
Death and Disability) Award 2006 published 30 March 2007 (362 I.G. 302).
18.3 This Award shall
be binding upon the FBEU and the NSW Fire Brigades.
18.4 This Award shall
take effect on and from 22 March 2009 and shall remain in force until 21 March
2012.
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
|
T.
M. KAVANAGH J
____________________
Printed by
the authority of the Industrial Registrar.