Application for NSW Ambulance Safe Paramedic Crewing Award [2022] NSWIRComm 1037

Industrial Relations Commission (NSW)|2021-11-17

decision

The Health Services Union NSW ("HSU") applies for the making of a new award to be titled "NSW Ambulance Safe Paramedic Crewing Award" ("Application"). The Application is brought pursuant to s 10 of the Industrial Relations Act 1996 ("IR Act").
The Application is the latest development in a considerable history of disputation between the HSU, the Australian Paramedics Association (NSW) ("APA") and the Ambulance Service of NSW ("NSW Ambulance") [1] as to whether paramedics should be able to be dispatched to respond to incidents alone. The award that it seeks would, in the HSU's submission, provide a definitive resolution to the issue by ensuring that paramedics are assigned to a dual crew and that any NSW Ambulance vehicle that is capable of patient transport is staffed by a dual crew when dispatched to incidents.

The hearing

The Full Bench heard opening submissions and the parties' evidence over three days, 15, 16 and 17 November 2021. The HSU read: 1. statements of Michael John Callinan, a paramedic at Muswellbrook Station, dated 6 August 2021 and 29 October 2021; 2. statements of Steven Fraser, a Station Officer at Nambucca Heads Station, dated 5 August 2021 and 1 November 2021; 3. statements of Michael John Grayson, a Station Officer at Batemans Bay Station, dated 5 August 2021 and 1 November 2021; 4. a statement of Peter Harrison, a Station Officer at Penrith Ambulance Superstation, dated 5 August 2021; 5. statements of Stuart Hatter, Ambulance Division Secretary of the HSU, dated 6 August 2021, 1 November 2021 and 17 November 2021; 6. statements of Allison Moffitt, Clinical Training Officer at Gilgandra Training Unit, dated 6 August 2021 and 1 November 2021; 7. statements of David Sheers, a former Station Officer and now retired, dated 5 August 2021 and 1 November 2021; 8. a statement of Scott Small, a paramedic at Taree Station, dated 22 October 2021; and 9. a statement of Glenn Adrian Wise, a Clinical Training Officer in the Sydney and South-East Sydney Regional Training Unit, dated 1 November 2021.

Terminology

The award initially sought by the HSU comprised Schedule 1 to the Application. A revised version of the proposed award was included with the HSU's Final Reply Submissions, filed on 7 February 2022. It is the second version which is pressed by the HSU. Consequently, for the purposes of this decision a reference to the "Proposed Award" is a reference to that later version.
A variety of terms was used throughout the proceedings to refer to situations in which a paramedic is dispatched to respond to an incident on their own. For ease of reference, we will refer to these as "single paramedic responses" or to paramedics being directed to "respond single". Paramedics so directed will be referred to as "single responders".
There are, however, categories of paramedics whose positions anticipate or require that they respond to incidents alone and not as part of a crew. These categories, which we will refer to collectively as "Recognised Solo Operators", include: 1. Extended Care Paramedics ("ECPs"); 2. members of the Special Operations Team; 3. Paramedic Specialist (ICP) Motorcycle Responder. ("ICP" refers to Intensive Care Paramedic); 4. members of the ICP Immediate Care Unit ("PICUs"); 5. Duty Operations Managers; 6. Paramedic Educators; and 7. Clinical Training Officers.
There is some uncertainty as to whether and to what extent the Proposed Award is intended to or would affect the activities of Recognised Solo Operators. The HSU submitted that "the deployment of those solo responders is not affected by the Proposed Award", [2] a submission that is difficult to reconcile completely with the terms of the Proposed Award itself. As it transpires, this is not a matter requiring determination and we will proceed on the premise as submitted by the HSU.
Consequently, a reference in this decision to a "single responder" does not include a Recognised Solo Operator and a "single paramedic response" does not include one in which a Recognised Solo Operator is dispatched in that capacity to an incident.

Background

The issue of single paramedic responses has been the subject of a number of disputes notified to the Commission by the HSU and the APA. This has resulted in several decisions, statements and recommendations having been made by the Commission since 2005. It is not necessary that all of that history be traversed.
It suffices to say that on 27 September 2019 and 22 April 2020 Commissioner Murphy made recommendations in an attempt to resolve three related disputes then before him for conciliation (matters 2018/192622, 2019/111590 and 2019/272699). Informed by those recommendations, NSW Ambulance created, in consultation with the HSU and the APA, a document titled "Work Instruction - Clinical Operations - Dual Paramedic Crewing" ("Work Instruction"). The Work Instruction included the following provisions: "1. Purpose The purpose of this work instruction is to ensure sound strategic rostering is in place to avoid single paramedic responses. It does not apply to rosters of Duty Operations Managers, Extended Care Paramedics, Special Operations Paramedics, motorcycle paramedics, PICU and other approved single responder programs. … 3. Roster construction Each Sector is to work towards core rosters that do not produce single responders and enable double crew rosters to be created across the state. If a double crew roster has an unplanned absence then weekly and/or daily management will be engaged."
The Work Instruction went on to set out the steps that would be taken on a weekly and daily basis to identify instances, or potential instances, of a paramedic being rostered to work single (that is, not as part of a dual crew), and to have that paramedic assigned to a dual crew.
The Work Instruction was issued by NSW Ambulance on 12 June 2020. The proceedings then before Commissioner Murphy were discontinued.
On 1 September 2020 the APA filed a further notification to the Industrial Registrar of an industrial dispute pursuant to s 130 of the IR Act. That dispute related to the maintenance by NSW Ambulance of "minimum operating levels", otherwise known as "zone operating levels" ("September 2020 Dispute").
To understand the context of the September 2020 Dispute, and its relevance to the present proceedings, we note the following evidence from the statement of Mr McKenna in these proceedings: "55. The NSW Department of Health and the HSU entered into a memorandum of understanding on 23 December 2010 in relation to wages and conditions outcomes for employees covered by the Award (in the form then applicable) for the period 1 July 2010 to 30 June 2014. … 56. One aspect of the MOU was an agreement on the way ambulance officers will be deployed. … 57. An outcome of the MOU was to recognise deployment targets at Zone level arrived at by aggregating then applicable deployments at stations within each Zone. This resulted in NSW Ambulance adopting Zone Operating Levels (ZOL's), being deployment targets that apply to each geographic zone. Under that deployment model, NSW Ambulance used all available resources, including off duty overtime resources, to ensure that the applicable ZOL is met in each Zone for day, afternoon and night shifts, as well as, where applicable, on call. 58. After entering into the MOU, NSWA increased ZOL's in various Zones as required, such as to address a new station being opened or the creation of night shifts to replace on call arrangements. 59. Separate to the operation of ZOL's, rosters are set at each station. The number of planned deployments for each shift at a station is derived from the number of crews (each crew being two Paramedics) produced by an approved roster. The total number of potential deployments based on the outputs of all approved rosters is designated as Planned Ambulance Rosters (PAR) by NSW Ambulance. … 24. PAR is intended to meet and exceed anticipated emergency demand, though demand levels will fluctuate depending on the time of the year and other factors." (Emphasis in original)
On 4 December 2020 the HSU filed a notification to the Industrial Registrar of an industrial dispute pursuant to s 130 of the IR Act ("December 2020 Dispute"). The notification described the "question, dispute or difficulty" requiring resolution in the following terms: "1. Earlier in the 2020-year Commissioner Murphy assisted the HSU, the APA and the Ambulance service in resolving a long-standing dispute by creating the Dual Paramedic Crewing Work Instruction… 2. This work instruction has created some difficulty in its rollout, including but not limited: i. The use of trainees on-call ii. The time waiting on scene for back-up crews iii. Trainee paramedics being utilised on core roster lines iv. Leap frogging v. Failing to create dual crews within an hour vi Consultation with staff about movements. 3. The HSU has endeavoured unsuccessfully to resolve these outstanding disputes at the local level. 4. As such, we seek the assistance for the commission to resolve these on going difficulties." (Reproduced verbatim)
The December 2020 Dispute was allocated to Commissioner Murphy. The Commissioner unsuccessfully attempted on a number of occasions up to and including 19 March 2021 to resolve the proceedings by conciliation.
On 19 March 2021 the HSU filed the Application, giving rise to the present proceedings. The December 2020 Dispute was stood over pending the determination of the Application.
On 10 May 2021 Commissioner Murphy made a recommendation in relation to the September 2020 Dispute, which included the following: [3] "2. That as an immediate step, New South Wales Ambulance maintain, including through the use of overtime, its core roster outputs (planned ambulance rosters) on a station by station basis, that is that zone operating levels be raised to the level of planned operating rosters so that there is no zone operating level/planned ambulance roster gap for any station."
NSW Ambulance adopted the recommendation. It informed the HSU and the APA that Regional Operations would commence to maintain rosters to Planned Ambulance Rosters ("PAR") from 22 July 2021 and that Metropolitan Operations would transition to maintaining rosters to PAR by 16 July 2021.

Positions of the parties in brief

The HSU's case for the making of the Proposed Award rest on two broad premises. These are that single paramedic responses, first, expose paramedics to significant additional workplace health and safety risks, and second, result in patients receiving a sub-optimal level of care and treatment.
The purpose and effect of the Proposed Award are well reflected in the following of its provisions: "1. Interpretation 1.1 It is inherently dangerous for a Paramedic to respond to an emergency case alone. This Award should be interpreted as an instrument to protect the safety of Paramedics and their patients. … 4. Safe Crewing 4.1 It is the responsibility of the employer to ensure each Crew Paramedic is assigned to a Dual Crew prior to the commencement of shift. 4.2 Every dispatched Ambulance Vehicle with the potential for patient transport must be staffed by a Dual Crew. [4.3] If a Crew Paramedic is unable to be paired at the commencement of shift to form a Dual Crew, that Crew Paramedic shall be marked as non-operational and is to undertake non-operational tasks until such a time as a Dual Crew can be formed. 4.4 A Crew Paramedic may only be directed to report at a station other than that to which they are appointed for the purposes of forming a Dual Crew if: (a) that station is a maximum of 30 minutes of road travel by a standard vehicle from the location which they commence travel [sic]; or (b) that station is a maximum of 40 kilometres distance from the location which they commence travel [sic], unless otherwise genuinely agreed to between the parties. [4.5] A Crew Paramedic directed to travel per section 4.5 [sic] of this Award must be marked as non-operational for the duration of travel until such a time as the Dual Crew is formed. 4.6 When a Crew Paramedic is rostered on-call pursuant to clause 23 of the Paramedics and Control Centre Employees (State) Award, the Crew Paramedics are to meet at an agreed to location to form a Dual Crew prior to arriving on scene."
NSW Ambulance opposes the making of the Proposed Award, or indeed any award. It contended that the Commission has no power to make the Proposed Award as the matters in dispute do not constitute an "industrial matter" within the meaning of s 6 of the IR Act, and further that the terms of the Proposed Award do not comply with the requirements of the IR Act. Even were the Commission to find that it has the power to make the Proposed Award, NSW Ambulance put forward 10 grounds on which it submitted that the Commission would not, as a matter of discretion, do so.
For these reasons, NSW Ambulance seeks an order that the proceedings be dismissed.
In the alternative, NSW Ambulance submitted: [4] "4. While the HSU has not made out its case, NSWA would not oppose the [Paramedics and Control Centre Officers (State) Award 2021] being amended to add to clause 22 a further subclause in the following terms: (l) The Service will apply rostering practices intended to avoid single paramedic responses to the extent practicable. To that end it will apply the Work Instruction titled Clinical Operations - Dual Paramedic Crewing dated 12 June 2020, or as amended or replaced by the Service from time to time following consultation." (Italics in original)
The APA was in broad agreement with the HSU that award regulation was necessary to address the issues of paramedic safety and patient care that were said to arise from single paramedic responses. It did not, however, support the making of an award in the terms of the Proposed Award.
The APA puts forward what it described as the "middle course" between HSU and NSW Ambulance. This would entail the amendment of the Work Instruction in a manner that "would not prohibit single-crewing, but would put in place appropriate consultation and rostering to reduce single-crewing where it could practically be avoided". [5] The APA proposes that the amended work instruction be incorporated into the Paramedics and Control Centre Officers (State) Award 2021 ("PCCO Award").

Legal principles

There was no significant controversy as to the legal principles to apply in determining the Application.
In Fire and Rescue NSW Firefighting Staff Awards 2021 [2021] NSWIRComm 1062 the Full Bench observed: "9. Section 10 of the Act empowers the Commission to make awards 'setting fair and reasonable conditions of employment for employees'. Section 17 empowers the Commission to vary or rescind an award, provided that it may only do so after the nominal term of the award if it considers that it is not contrary to the public interest to do so: s 17(3)(d). 10. Section 146(2) of the Act requires the Commission to take into account the public interest in the exercise of its functions. For that purpose, it must have regard to the objects of the Act, and the state of the economy of New South Wales and the likely effect of its decisions on that economy. 11. The objects of the Act are set out in s 3, which for present purposes relevantly provides as follows: 3 Objects The objects of this Act are as follows - (a) to provide a framework for the conduct of industrial relations that is fair and just, (b) to promote efficiency and productivity in the economy of the State, … (e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments, … 13. The Full Bench recently articulated at length the principles to be applied in deciding whether to make or vary an award: Application for Crown Employees (Public Sector - Salaries 2020) Award and Other Matters (No 2) [2020] NSWIRComm 1066 ('Public Sector Salaries 2020') at [24]-[31]; Applications for Variations to Crown Employees (Police Officers - 2017) Award and Paramedics and Control Centre Officers (State) Award [2021] NSWIRComm 1040 ('Police and Paramedics 2020') at [17]-[32]. It is not necessary to reproduce those passages in their entirety. They have informed our approach to these proceedings."
We have approached the determination of the Application on the same basis.

Questions of power

NSW Ambulance contended that the Commission is unable to make the Proposed Award for two reasons: 1. the Proposed Award in whole or in part will not resolve a dispute, question or difficulty about an "industrial matter", as that term is defined in s 6 of the IR Act; and 2. the Proposed Award does not comply with the statutory requirements to make an award set out in ss 13, 14 and 23 of the IR Act.

Is there an industrial matter?

Through the Application, the HSU seeks an award to resolve the December 2020 Dispute, in the context of a history of disputation arising from the use by NSW Ambulance of single paramedic responses. Section 136(1)(b) of the IR Act provides that in arbitration proceedings of an industrial dispute the Commission may "make or vary an award under Part 1 of Chapter 2" of the IR Act.
The term "industrial dispute" is defined in the Dictionary of the IR Act as "a dispute (including a question or difficulty) about an industrial matter". The term "industrial matter" is defined in s 6(1) as follows: 6 Definition of industrial matters (1) General definition In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry.
In Health Services Union v Ambulance Service of New South Wales [2008] NSWIRComm 72 Boland J observed: "22 The context in which the phrase is used is, in broad terms, the Industrial Relations Act, which is a piece of beneficial legislation to be interpreted liberally. The more immediate context is s 6 of that Act where industrial matters is defined as 'matters or things affecting or relating to work done or to be done in any industry or the privileges, rights, duties or obligations of employers or employees in any industry.' It has been observed that this definition would seem to extend to 'any matter which arises out of the relationship of employer or employee, provided that it is not inconsistent with the provisions of the Act': Re Bank Officers (State) Board [1921] AR (NSW) 252; C P Mills 'New South Wales Industrial Laws' (4th ed, 1977, Butterworths) at 88. 23 There is nothing to suggest that the term 'relating to' in s 6 of the Act was intended to have other than a wide operation and that even though a matter or thing might have only an indirect (but relevant) connection with work done or to be done, that, in my view, would be a sufficient relationship."
It is well-established that the Commission is empowered to make or vary an award to adopt measures which will address threats to the health and safety of employees covered or to be covered by the award: Re Operational Ambulance Officers (State) Award (2001) 113 IR 384; [2001] NSWIRComm 331 at [186], noting the discussion of the Full Bench in that case at [171]-[185].
One of the key planks of the case advanced by the HSU, supported by the APA, is that single paramedic responses expose paramedics to greater workplace health and safety risks than exist when working as a member of a dual crew. As will be seen, NSW Ambulance did not dispute the existence of at least some of those risks. To the extent that the Proposed Award is directed towards addressing those risks, it concerns an industrial matter.
NSW Ambulance further contended that the application was not about an industrial condition, but rather "seeks to have the Commission determine how NSWA allocates resources" [6] . It further submitted: [7] "8. In short, the application invites the Commission to determine that for some patients, officers can be dispatched single, namely when allocated to some (but not all) recognised single responders…while all other patients must wait for a dual crew, however urgent their circumstances. Such a question is intrinsically one of managerial prerogative with which the Commission as a matter of discretion would not seek to interfere, in the absence of an overwhelming case of industrial justice. However, more than that, the Proposed Award is beyond the Commission's power, since the question of how to allocate resources to address varying demands and priorities are not 'industrial matters'. The argument that decisions governing how particular work is allocated may impact on occupational health and safety, in circumstances where an increased use of overtime may also increase risk to the health and safety of workers through fatigue, falls a long way short of constituting an industrial matter justifying the Commission's interference." (Emphasis in original)
Three matters arise from these submissions. First, they conflate the question of the Commission's power with a matter that goes to discretion, namely the extent to which the Commission would interfere with the prerogative of NSW Ambulance to manage its affairs. We accept that the question of prerogative is properly a matter to which we should have regard, and it is a matter to which we will return. However, the question has no bearing on whether the Commission is empowered to determine the Application.
Second, many, if not most, awards will entail the allocation of resources in the face of competing demands and priorities. Awards inherently call for available financial, material, labour and other resources to be allocated in some manner. We fail to see how this properly takes the matter outside the scope of being an "industrial matter".
Third, whether "an industrial matter [justifies] the Commission's interference" is again properly to be seen as a submission going to discretion and not power. The existence of an industrial matter (as defined) enlivens the jurisdiction. Whether or not the Commission should "interfere" through exercising that jurisdiction is a matter of discretion.
In his closing oral submissions Mr Taylor SC, who appeared for NSW Ambulance, drew our attention to Fire Brigade Employees' Union of New South Wales v Industrial Relations Secretary on behalf of Fire and Rescue NSW (In Orders Dispute) [2022] NSWIRComm 1016 ("In Orders Case"). At [26] of that decision, Commissioner Sloan observed: "26. In so far as these submissions are premised on the proposition that the concept of an 'industrial matter' is a conditional one, depending for its existence in any case on the notifier establishing a case for the Commission to intervene, I do not accept them. It is not a question of a matter being 'capable' of being an industrial matter. If it falls within the definition in s 6(1), and there is a dispute (including a question or difficulty) about it, then it may be notified to the Commission whose jurisdiction is then invoked. The existence of a dispute about an industrial matter is not dependent on the notifier making out the case for intervention. Whether the notifier is able to convince the Commission to intervene, or to intervene in the manner sought, goes to the Commission's powers and discretion, not its jurisdiction."
Mr Taylor submitted: [8] "We accept that Commissioner Sloan took a different view in very similar arguments in the fire case with absolute respect. And we don't necessarily anticipate that this bench is going to take a different view to Commissioner Sloan, but we nevertheless submit that the fact that parties are raising health and safety matters does not ipso facto confer jurisdiction on this commission. The mere fact that one party says we're in dispute about this and we say it raises health and safety, is not sufficient to come to a view that the commission has jurisdiction. It's true that industrial matters is very broad, but we say that the commission has to be satisfied that there actually is a genuine dispute about health and safety matters. We are concerned to maintain the submission that whatever the powers this commission has, it doesn't extend in effect to a jurisdiction to tell the NSW Ambulance Service about how it should dispatch trained ambulance officers to particular cases."
We agree that a party seeking to invoke the Commission's jurisdiction must establish the existence of an industrial matter. Simply asserting the existence of a dispute about such a matter does not ipso facto confer jurisdiction on the Commission. We see nothing in the passage from the In Order Case reproduced at [45] above which, when read in context, suggests otherwise.
The point made by Commissioner Sloan in the In Orders Case was that the existence of an industrial matter is not conditional on a finding by the Commission that the matter justifies intervention. There is a distinction between the existence of power and the exercise of that power. If the evidence establishes the existence of an industrial matter, the Commission's jurisdiction is invoked. That jurisdiction encompasses the discretion to determine to make no award.
We are satisfied that the Application raises genuine issues relating to paramedic safety, at least some of which were acknowledged by NSW Ambulance. We reject the contention that the Application does not relate to an industrial matter.

Non-compliance with statutory requirements

We agree with NSW Ambulance that the Commission could not make the Proposed Award in its present terms. However, this does not act as an impediment to the Commission determining the Application.
The Commission is not a tribunal of strict pleading. As observed by Kite AJ (as he then was) in Transport Industry - General Carriers Contract Determination (2016) 257 IR 294; [2016] NSWIRComm 3: "34. It has long been recognized [sic] that Industrial Tribunals are in a different position to the general courts. The duty of the Commission is to make an award or determination which prescribes fair and reasonable rates and conditions. In doing so the Commission is not bound by the rules of evidence or to act in a formal manner but 'is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.' See s 163 (1)(c) of the Act." (Italics in original)
It would be entirely at odds with the Commission's powers and discretions under the IR Act to hold the HSU strictly to the terms of the Proposed Award and to dismiss the Application on the basis that the IR Act would not permit an award in those terms to be made.
Ultimately, awards are made by the Commission. If a party makes out a case for the Commission's intervention, then subject to affording the parties procedural fairness, it is for the Commission to determine the terms of the award or variation to be made.

Determination

While the Commission has the power to determine the Application, we have nonetheless decided, in the exercise of our discretion, not to make an award in the terms of the Proposed Award. Further, to the extent that the Commission might make an award in different terms, we are not persuaded that the Commission ought to make an award that would have the effect of prohibiting single paramedic responses.
Our reasons for making this decision are set out below.

NSW Ambulance wishes to avoid single paramedic responses

NSW Ambulance acknowledged that single paramedic responses are best to be avoided. In his statement, Mr McKenna deposed: "76. From an operational perspective, therefore, NSWA does not desire to dispatch single paramedics to emergencies and will continue to explore means of avoiding circumstances where that occurs."
Similar statements are repeated throughout the evidence and written submissions of NSW Ambulance. In his closing oral submissions, Mr Taylor submitted: [9] "The ambulance service does not want to dispatch single paramedics to high acuity cases for a variety of reasons. Mr Slevin identified many of them but prime amongst them is that single responder[s] cannot transport. Another reason is that as a result of that, they need to be backed up so that's a second resource that is going to have to be applied so it's definitely preferable to have a dual crew. It's to that end that this Commission heard the evidence as to the extensive steps the ambulance service has taken to reduce so far as practicable the incidents of officers responding single."
One of the steps to which Mr Taylor referred was the introduction of the Work Instruction, the purpose of which is expressly stated to be the avoidance of single paramedic responses. In his statement, Mr McKenna set out the steps taken by NSW Ambulance pursuant to the Work Instruction as follows (noting that in the following passage "DCWI" is a reference to the Work Instruction): "121. The DCWI recognises a number of steps available to be taken to fill shift vacancies on a weekly and daily basis. 122. A review is conducted of the following week's roster by Wednesday of the current week to identify single officers or the prospect of there being a single officer. If so, a range of steps are considered to enable the vacancy to be filled from the commencement of the relevant shift. Those steps are developed as a contingency plan if it is not certain there will be a single officer. The steps set out in the DCWI do not have an order of priority and apply as available alternatives. 123. The first step is to relocate the Paramedic who would be single to a different station to form a dual crew. If that cannot be done, consideration is given to calling in a Paramedic who is due to work a 'payback' shift because he or she did not work a shift at some earlier time. A 'sector swap' will be considered, whereby that Paramedic works the payback shift at a different station to their usual place of work to form a dual crew. Another option considered is to change the roster line of the affected Paramedic, subject to balancing of hours (with the effect that they are no longer rostered for the shift where they would be single). Another option is to utilise a relief or 'extra' Paramedic from another station. The Current Award contains provisions in clause 14 enabling paramedics to be directed to work at a different station to their appointed station and this approach is utilised to enable a dual crew to be formed. There may be reduced hours or part-time Paramedics available to work all or part of a shift to support the single Paramedic. A further option is to roster an officer who would otherwise be off-duty to work overtime. ... 124. Under the DCWI reviews of rosters occur for the following day in the preceding morning and at 2pm to address any single rostered Paramedic issues. The Duty DOM also reviews daily rosters prior to commencement of shift. 125. The options available to address short notice vacancies are similar to those used where there is advanced notice, although some of those may not be practicable, depending on the circumstances. The challenges are greater in Regional locations due to there being fewer Paramedics and the distances involved. 126. A 'spare' or 'extra' crew or Paramedic at a station within one hour's travel time from the commencement of the single officer's shift may be moved to form a dual crew. 127. That may not be directly possible due to the distance involved. In that case, a 'leapfrogging' process may be undertaken, whereby a Paramedic or crew moves from their usual station to form a dual crew with the single paramedic, while the 'spare' or 'extra' crew or Paramedic travels to cover the gap resulting from that movement. ... 128. A process of 'splitting' crews refers to a situation where a crew is divided in order to be sent to fill shift vacancies. This approach is possible where there are single officers at two different stations and a third station within one hour's travel of each has a crew available to be split in that manner. 129. A dual crew may also be sent from locations further than an hour away to attend Priority 2 cases instead of the single officer. This would generally be possible where the patient is assessed as stable and transport to hospital, while necessary, is not urgent. ... 131. Based on my experience and observation, the operation of the DCWI resulted in there being fewer single officers on shifts and accordingly a reduction in the number of single officer responses. …"
Mr McKenna also stated that NSW Ambulance has, in conjunction with the HSU and the APA, varied rosters in regional areas to avoid "singles" appearing on the roster. He stated that 55 rosters had been varied through this process since 2020.
There was also some evidence that in recent years there has been an increase in the number of paramedics employed by NSW Ambulance, through a process described as the "State-Wide Enhancement Program". In his statement Mr McKenna deposed: "15. Paramedics perform demanding and stressful work. They also work long shifts. The risks posed by fatigue, for the health and safety of both paramedics and patients, are readily apparent and must be effectively managed. In many regional areas, paramedics are rostered on-call at night between normal rostered shifts. NSWA has increasingly sought to remove on-call from its rosters by the introduction of night shifts at those locations. Over the last four years, NSWA has replaced on-call by converting 24 stations to 24-hour stations, removed on-call from six stations that were pre-existing 24 hour stations and decreased on-call at six locations that were pre-existing 24 hour stations. These changes have been possible through the program known as SWEP, which introduces an additional 700 paramedics and 50 call takers over four years from 2018."
The HSU submitted: [10] "109. Despite the lengthy history of the dispute, the agreed positions that ambulances should be crewed by dual paramedics, the dual paramedic work instruction and the numerous Decisions, Statements and Recommendations of the Commission, NSWA continues to send ambulances with single officers to emergencies."
To the extent that they can be seen to be describing contemporary work practices as opposed to recounting their past experiences, the HSU's and APA's witnesses gave the following evidence: 1. Mr Callinan stated that the practice of single paramedic responses "has become increasing[ly] prevalent" and that he has responded single "many times"; [11] 2. Mr Grayson deposed that he has been "dispatched as a single paramedic regularly and systematically throughout his career", by which he meant an average of twice a month; [12] 3. Ms Moffitt stated that single paramedic responses "still occur daily due to factors such as unplanned leave"; [13] 4. Mr Wise stated that on average he responds single one to two times per fortnight; 5. Mr Beaton stated that "we are often responded single"; [14] 6. Ms Bianchi stated that being on call at her station "has invariably resulted in responding single"; [15] and 7. Mr McEwen referred to having been "forced to work single…continuously". [16]
Mr McKenna provided evidence as to the number of single paramedic responses for the period June to September 2021. The figures suggest a downward trend, from a total of 529 in June 2021 to 208 in September 2021, although we acknowledge that it is a reasonably small dataset from which to draw firm conclusions. Mr McKenna offered as a possible explanation for the reduction in single paramedic responses the fact that NSW Ambulance has since July 2021 been attempting to maintain rosters to PAR in Metropolitan locations (see [23]-[24] above).
The evidence adduced by NSW Ambulance reveals that: 1. in the months June, July and August 2021 NSW Ambulance responded to a total of 318,036 incidents, of which 1,176 (0.37%) were single paramedic responses; 2. of those single paramedic responses, 685 required back-up. Of these, 387 were backed up in less than 10 minutes.
There was some controversy as to the waiting times for those single responders who had to wait longer than 10 minutes for back-up to arrive. The HSU identified 11 instances in which the records of NSW Ambulance appeared to show a single responder being alone on scene for significant periods of time. NSW Ambulance was granted leave to file evidence, which it had attached to its closing submissions, that sought to explain those incidents and which was said to demonstrate either that the single responder was not on scene alone at all, or that the period before back-up arrived was less than its records suggested.
Having regard to the evidence as a whole, we are persuaded that NSW Ambulance is committed to avoiding single paramedic responses; that it has taken and is continuing to take steps to achieve this aim; that the incidence of single paramedic responses appears to be reducing; and, a paramedic who is dispatched single and who requires back-up is unlikely in the majority of cases to be waiting an unduly long time for that back-up to arrive.

Paramedics will be rostered single

Despite the steps taken by NSW Ambulance, there was generally no controversy that it is not possible for NSW Ambulance to guarantee against a paramedic being "single" at work. In his statement, Mr McKenna deposed: "19. Unfortunately, despite all the steps taken to fill vacancies in rosters (which are explained later in this statement), including those that arise at short notice, there are occasions, particularly in regional areas, where there is no available paramedic, resulting in a paramedic being 'single'. There are also occasions when paramedics may be single because they are rostered as 'extras', i.e. above core roster outputs. …"
Mr Grayson deposed under cross-examination: [17] "Q. So in your reply statement, I'm now going to that, paragraph 14. If you look at paragraph 14, the second sentence you're talking about an average of how often you respond single. You say in the second sentence, 'By average, I mean there could be months where I do many single officer jobs and there are months where I am paired for the entirety of the month.' Is that because in some months, the roster produces you on a dual crew and in some months, the roster produces you single and you might be then dispatched to do jobs where crews are otherwise occupied? A. So the roster itself produces dual crewing. There are times when there are people off duty or not available for shifts, as in workers comp, whatever that might make an impact or people on annual leave. So there are times when there are people single. It's not just myself that ends up single on rosters, it's also paramedics."
Mr Beaton deposed that it can "always happen" that singles can arise during a day shift because the other on-duty paramedic falls ill and is unable to attend. [18]
The Proposed Award itself recognises at cl 4.3 that a paramedic may be "unable to be paired at the commencement of shift to form a Dual Crew".

Whether single paramedic responses ought to be prohibited

In circumstances where paramedics will from time to time be on duty "single", the question which next arises is whether NSW Ambulance should be prohibited from dispatching them to respond single to an incident. For this would be the effect of the Proposed Award.
This conclusion flows from the obligation that would be imposed on NSW Ambulance to "ensure" a paramedic is assigned to a dual crew prior to the commencement of shift (cl 4.1) and, if this is not possible, to mark the paramedic as non-operational until a dual crew can be formed (cl 4.3); from the requirement that a dispatched ambulance vehicle with the potential for patient transport "must be staffed by a Dual Crew" (cl 4.2); and from the requirement that a paramedic travelling to form a dual crew is to be marked as non-operational for the duration of the travel (cl 4.5).
As already stated, the HSU's case is premised on two broad grounds: first, that single paramedic responses create additional workplace health and safety risks for paramedics; and second, that single paramedic responses result in sub-optimal patient care, being a matter of public interest warranting the Commission's intervention. We will address these contentions in turn.

Paramedic safety

In relation to paramedic safety, the witnesses called to give evidence by the HSU and the APA described at length their concerns at being directed to respond single. These included: 1. travelling alone in an ambulance, possibly under lights and siren, without a partner to assist with navigation, checking for traffic, and monitoring the mobile data terminal for updates from the control centre; 2. the possibility of manual handling injuries, as a result of both having to carry and manoeuvre heavy equipment, and to move patients without assistance so as to be able to render treatment; 3. the risk of violence from patients, members of family and bystanders, which is exacerbated by the absence of a partner to help monitor for risks (such as weapons or displays of aggression), to assist with bystander engagement while the patient is being treated, and generally to "watch your back"; 4. stress, anxiety and trauma caused by having to manage the situation, including bystanders, and from having to make all clinical decisions alone; 5. the lack of a partner with whom to debrief, exacerbating the trauma of single paramedic responses; and 6. driving while fatigued.
A number of the witnesses, and in particular Ms Bianchi, Mr Fraser, Mr Harrison, Mr McEwen, Ms Moffitt, Mr Sheers and Mr Small, provided examples of their experiences when they had been directed to respond single. These examples, some of which we acknowledge would have been truly harrowing for the paramedic involved, highlighted the concerns summarised above.
NSW Ambulance contended that a number of the risks identified by the HSU's and the APA's witnesses were present whether or not a paramedic was responding single or as a member of a dual crew. This included travelling under lights and sirens, particularly when the second paramedic is attending to a patient in the rear of the ambulance, and the risk of occupational violence. NSW Ambulance contended that the presence of a second person "has some potential to reduce risk of harm associated with patient and bystander violence, [but] this is not guaranteed and cannot be relied on as a safe system of work". [19]
NSW Ambulance adduced evidence as to the steps it has taken to mitigate the risks to paramedics from occupational violence. These include: [20] 1. providing a full day of training for staff in relation to occupational violence and dynamic risk management through wellbeing workshops and Ambulance Education Centre inductions which are mandatory for all existing and new staff. As at 15 November 2021, 4373 paramedics had undertaken dynamic risk assessment training as part of the Wellbeing Workshop, with the balance of paramedics to undertake the course in 2022; 2. issuing work instructions such as "DISP 2.05 Requesting Police Attendance", which contains information on when police attendance should be requested and the methods by which it should be done, and "DISP 9.01 Potentially Violent and High Risk Situations", which provides information on dispatcher responsibilities to provide paramedics with all relevant information in potentially violent or high risk situations to ensure that paramedics are able to make an appropriate risk assessment and "stand-off" until police are on scene if required in the situation.
Paramedics are not required, or even expected, to enter or remain in a dangerous situation. In his statement, Dr Bendall deposed: "64. The safety of paramedics remains paramount. Paramedics should and do have the ability to 'stand off' if they do not feel safe or retreat should the risk assessment change."
Consistent with this evidence, Ms Bianchi described a circumstance in which she declined to respond to a call as she was aware from experience that the scene may not be safe. There was no suggestion that there were any adverse consequences for Ms Bianchi as a result.
NSW Ambulance further contended that the evidence did not support a finding that the risk of injury to a paramedic is heightened in a manner that shows them suffering injuries that would have been avoided if they had been part of a dual crew. It adduced evidence of reports of occupational violence in 2020 and 2021, which suggested that only four instances were reported by single responders, three of which involved ECPs (whose work would not be affected by the Proposed Award) and all of which involved verbal abuse. As to manual handling, a total of 407 workers compensation claims for manual handling injuries were made between 20 July 2020 and 31 August 2021, of which only two involved single responders (from a total of 10 workplace injury reports made by single responders in which manual handling was described as the primary cause of injury).
Even in light of this evidence, there was at least some suggestion in the evidence and submissions of NSW Ambulance that paramedics might be exposed to some risks which may not have arisen, or may at least have been ameliorated, had they been in a dual crew. For instance, Mr McKenna acknowledged under cross-examination that a benefit of having a dual crew would be to alleviate a number of the concerns summarised at [74] above.
We are satisfied that a single responder may be exposed, to an extent, to greater workplace health and safety risks than when they attend an incident as a member of a dual crew.

Patient care

On the matter of patient care, the HSU led evidence that the training that paramedics (other than Recognised Solo Operators) receive and the protocols under which they operate anticipate that they will work in teams of two.
For example, Mr Slevin of counsel, who appeared for the HSU, cross-examined Dr Bendall and Mr McKenna on the NSW Ambulance Cardiac Arrest Checklist, the terms of which contemplate paramedics working in a team. In his statement, Mr Fraser drew attention to a number of policies and procedures relating to paramedics which similarly assume the presence of two (or more) paramedics. Ms Moffitt deposed: "11. NSW Ambulance provides protocols, pharmacologies and skills that are followed by paramedics for the clinical care of patients. … 13. The protocols are not written from the perspective of a single responder. That is, paramedics are not trained to work as a single officer. They are trained to work in a minimum team of two."
Consequentially, the HSU contended that a single responder will not be able to deliver the same level of patient care as that which could be provided by a dual crew. This will extend to not being able to apply in full the relevant procedures or protocols, or to utilise all of the equipment that might otherwise be available to be used in aid of the patient. Further, the single responder will not have the advantage of checking clinical decisions, medications and the like with another paramedic.
Ms Moffitt deposed: [21] "19. The way we train paramedics is to work as a team. As Paramedics we work in uncontrolled, dynamic scenes and can have added stressors such as family members who may be screaming at you to help their loved one. This can be an incredibly challenging situation to deal with. Working in a team allows one Paramedic to focus on the patient while the other Paramedic maintains situational awareness, reassures and calms family members/bystanders. 20. The second Paramedic may also be required to draw up and cross- checks [sic] doses prior to administration, assist with observations such as blood pressures, pulse, blood glucose levels, temperature, 12 lead ECG or taking history from others on the scene. These interventions tend to occur simultaneously to decrease the time taken to assess the patient and implement appropriate treatment. … 21. Practically speaking we know paramedics will be working when fatigued and in highly stressful situations. The reality is that you are making decisions quickly, on the spot and under pressure. Having another person to share ideas with, discuss potential treatment plans, check medications and to catch potential mistakes is an important safety net for ensuring good outcomes for patients. 22. There are logistical issues with single officer crewing, it is impossible to move a patient safely by yourself. We cannot follow our own WHS procedures to safely lift someone out of bed and load them into a car without another person present. 23. Even all the tools and equipment you need to bring from the car to the case can't usually be brought by a single officer. This may mean that you have to leave the patient to return to the ambulance to receive retrieve further equipment will get the bed. Then you may have to leave the patient in the ambulance to collect equipment and return it to the ambulance. 24. If you are a single officer it is difficult to manage a scene where there are multiple injuries. For example, in an MVA an officer will be under pressure to keep communication lines open with the coordination centre on the radio, but this is near impossible to do if you are also attending to a critically injured patient. 25. You can't drive and treat at the same time. If you have responded alone you end up having to wait for someone else to drive the vehicle. In urgent cases police or the fire service may be asked to drive the ambulance to hospital while a single officer paramedic attends to the case. This is not ideal as they will be driving an unfamiliar vehicle and will have to try to communicate with the receiving hospital or control centre to pass clinical information. Further, this takes these emergency workers out of action. Critically unwell patients may also require the care of more than one Paramedic in the back of the vehicle."
The evidence led by NSW Ambulance was consistent with the proposition that two paramedics may provide a more optimal level of care than a single responder. Dr Bendall stated that "there are necessarily compromises to be made when a paramedic responds single". [22] He accepted under cross-examination that a single paramedic will not be able to use the available equipment as efficiently as if they were a member of a dual crew.
In his statement, Mr McKenna stated: "82. I accept that it is preferable from a clinical care perspective that two Paramedics be present when attending a patient in an emergency situation. A Paramedic is trained to continually question their own decision making in an emergency and the presence of a second Paramedic adds another perspective in decision making. The second Paramedic can also assist in double checking the administration of correct drugs to a patient. There are also procedures, such as CPR, that are preferably performed with two Paramedics in attendance. A second Paramedic can also attend to other tasks, such as preparing the stretcher, while the other Paramedic attends to the patient."
However, in his statement Dr Bendall deposed: "45. As the majority of the NSW Ambulance paramedic workforce works as a member of a dual crew (team), the majority of training is also conducted in teams. While much of the clinical protocols/guidelines/procedures describe which roles are typically performed by which member of the team (for example during high performance cardiopulmonary resuscitation) the intent is not that clinical care can only be delivered by a minimum of two clinicians but rather, that principles of care can/should be applied when there are less than the optimal number of resources. Even where a dual paramedic team responds to an incident, if the number of patients is greater than one, how care is provided would need to be different. … 47. The training, knowledge, skills and experience of paramedics can be applied when working single. Whilst this might not correlate to the paramedic feeling highly comfortable, there is significant benefit that can be offered to patients. The core training of paramedics can be readily applied to working single."
This extract leads us to consider the key premise underpinning NSW Ambulance's opposition to the Proposed Award. It contends that from the perspective of patient care, there will be instances where time is of the essence and where the prompt attendance of a single responder will deliver a greater clinical benefit to the patient than waiting for a dual crew to arrive. That is, whatever compromises might be made from a clinical perspective are outweighed by the benefits of a timelier response.
In his statement Dr Bendall deposed: "14. There are a small proportion of triple zero cases which are truly life threatening, where, without immediate intervention, patients will die of potentially reversible causes, but with immediate intervention death can be prevented. … 61. In many instances, the benefits of responding a highly trained paramedic single, as part of an organised emergency medical service, by far outweigh the risks of not doing so. 62. As Director Medical Services, I place greater importance on paramedics arriving at a scene of a life-threatening (or potentially life-threatening) situation quickly to ensure early life-saving interventions are performed rapidly than the alternative which is delaying arrival but having transport immediately available. In the majority of instances, getting to a scene [as] quickly as possible is more important than the ability to have immediate transport available."
Under cross-examination, Dr Bendall deposed: [23] "The sooner anybody can commence those therapies is key and if that was a PICU responder or a single paramedic from a station. But if I was a patient and two paramedics were able to arrive in the same timeline, I think that there, you would get more, you would get closer to the optimal standard if that occurred. But timely, anyone arriving in a timely manner would be better than two paramedics arriving later." And further: [24] "I think if you said that, 'I wanted to do the right thing by the patient at all times' in the example you gave for a cardiac arrest, then attending, starting CPR and defibrillating as soon as possible would be the cares that were in the best interest of the patient and they would have been directed to respond single. For the patient's perspective the sooner that care arrives, in this most extreme and time‑critical circumstance, is time is the only thing that matters, whether that's a first aider, a first responder, a police officer or a paramedic, the sooner that care arrives is clearly what's in the patient's best interest in that example, but I can see that there could be conflict."
Mr McKenna put it succinctly: [25] "Because minutes is heart muscle, brain tissue."
There is little controversy that from the perspective of patient welfare, a dual crew would provide more optimal care than a single responder. However, we are satisfied that in an emergency, there will be instances where the timely dispatch of a single responder will deliver greater clinical benefits to the patient than awaiting the availability and arrival of a dual crew.

NSW Ambulance contends that the benefits of single paramedic responses outweigh the risks

For these reasons, NSW Ambulance contends that single paramedic responses should not be prohibited. In short, it argues that the benefits to a patient of a timely response in a critical situation outweigh any compromises in the clinical care that would otherwise be provided by a dual crew, and any additional risks to the single responder paramedic (to the extent that such risks exist).
In his statement, Dr Bendall stated: "49. All paramedics have the ability to provide clinical care which will greatly benefit patients, even when working single, accepting that this care may not be delivered as efficiently as when there are more resources available. It is in the public interest to do this when there are not timely alternatives. It is acknowledged that it is more challenging to provide emergency care as a solo clinician and will be associated with much higher cogitative burden; the same can be said for almost all challenging cases. Paramedics have the capability to provide 'helping behaviours' and potentially lifesaving interventions, even during these more challenging cases. Paramedics are skilled in engaging and utilising bystanders regularly and in identifying and solving problems. … 68. There is a community expectation that a paid paramedic, on shift, with access to an ambulance, would respond to a life-threatening emergency. 69. Equally, there is a community expectation that NSW Ambulance would do all that is reasonably practicable to provide this emergency response in a way that is safe for both paramedics and for patients. 70. Clinical risks are easily reconciled - the benefits for [sic] interventions…outweigh the risks to patients - it is hard to imagine a situation where doing nothing in cases like this would be preferred. 71. It is challenging to be a solo-clinician looking after a critically ill patient, which is why it is preferred to have dual crews respond wherever possible. That being said, the clinical priorities remain the same - meaningful interventions will need to [be] performed sequentially rather than in parallel - some interventions may not be able to be performed at all and some required actions will need to wait until help arrives. 72. It is acknowledged that attending some of these emergency situations will be stressful and that some cases can be distressing. This is true for single officer and multiple officer responses. 73. Ideally, single paramedics would not be sent to life threatening emergencies but in general, where there is no other option, the benefits will outweigh the risks - paramedics retain the ability to stand off until other assistance arrives if there is concern regarding their immediate safety. 74. The introduction of a rule or policy that prevented single paramedic responses would result in deaths which were potentially preventable. 75. Having previously worked as a single responder within and outside of NSW Ambulance and having trained and worked closely with current paramedic specialists who routinely respond single (including recently), I am of the opinion that where there is no dual crew available, responding single paramedics is the better thing to do for the community, patients and the profession in the majority of instances when there is a potentially life threatening situation. I also acknowledge that there may be some instances where the risk to paramedics is too high and awaiting [sic] for more resources may be the right thing to do - these situations are far less common than the alternative. 76. It is my opinion, based on more than 25 years association with NSW Ambulance and the paramedic profession, having worked as a single responder, having explicit knowledge of the ECP program, collaborating with paramedics across the State, and having recent experiences with single responder programs, that paramedics want to always do what is right for the patient when it is safe to do so. I am aware of many paramedics who are comfortable responding single when there are good reasons to do so. Where there is a reasonable suspicion that a patient might have a life threatening condition (after primary triage) it is in the patient's interest to have a paramedic respond. Ideally this would be a dual crew however paramedics as individuals, and as a profession, are the best placed healthcare providers to provide immediate life support when it is safe to do so. 77. In the overwhelming majority of cases, when compared to the alternative of not sending a paramedic, there will be benefit in almost every instance."
Consistent with the observations of Dr Bendall at par 76 in the above extract, in cross-examination Mr Beaton deposed: "Q. Now in a small town like Gilgandra, I presume that all the officers who life [sic] in town will respond if they can, in an emergency situation, even if they're off-duty? A. If they can, generally we will try to, to serve the community yes. Q. Now you tell us in your statement, it's paragraph 9, that you've been responded off-duty as a single responder on, I think you say numerous occasions. So is that in a situation I've just been describing where the on-duty crew or the on-call crew, are otherwise occupied and the control centre has been looking for officers who live in Gilgandra to respond to a second incident? A. Yes. Q. Is the reason that you've been responding single, is because in those circumstances, to your knowledge, you were able to respond even though you weren't rostered, but the control centre weren't able to find a second officer to assist you? A. That's right. Q. In those circumstances, is it the case that the control centre will then seek to back up the single responder with the closest available dual crew, which might be coming from Dubbo or Warren? A. That's right or they could come from even further away, from other towns. Q. That potentially leaves the single responder dealing with an incident for something that might be 50 minutes, possibly even more at times? A. That's correct. Q. Do I understand it and I think you say this in paragraph 7, that whilst clearly not ideal, this practice of calling out officers who are off-duty is something which provides coverage for the community, which would otherwise mean if that didn't happen, a patient would be waiting an hour or more for an ambulance? A. That's correct. Q. In paragraph 6 you describe an incident where your colleague was sick. Can you recall whether on that particular time, that at the time you were being asked to respond, it was a day shift and you were responding from the station or was it a night shift and you were responding from home? A. It was responding from home and it was an on-call shift. Q. Did it also occur from time to time that singles arise during a day shift because the other on-duty officer was ill and unable to attend? A. Yes that can always happen. Q. So in that particular situation, you ended up being the only person or the person who was available to assist you was another emergency worker, in this case a police officer? A. Yes that's correct. Q. Is that something which does tend to happen in the regional small towns, that paramedics will from time to time, end up being backed up in a sense, if that's the right word, or assisted is probably a better word, by another emergency worker? A. Yes. Q. Now you have the proposed award in front of you and you might have had a chance to look at it, have you, before I asked you questions this morning? A. Yes I have. Q. Can I ask you to assume that one of the things that award, if it were made by the Commission would do, would be to prevent an officer being put in an ambulance single, to respond to an incident. Now if an incident occurred in Gilgandra when the on-duty or on-call crew were otherwise occupied and an emergency arose, would you be content with an award that would require you to remain in the station or at home single and the patient would have to wait for a backup crew to come from some further distance? A. No I wouldn't be comfortable."
NSW Ambulance submitted: [26] "27. In the circumstances, it is not surprising that the HSU does not cavil with the general proposition that not dispatching a single paramedic in response to a medical emergency when that paramedic is the closest available resource would not be in the public interest. Instead, at [143] of the HSU Final Submissions, a list of other risks is set out which it says are factors that must be weighed when considering the public interest. NSWA does not disagree, but says that none of the identified risks outweigh the clear and obvious public benefits of sending a single paramedic to an emergency when there is no other effective option."
The HSU submitted: [27] "14. …NSWA contends it is contrary to the public interest to make the proposed award as 'the benefits of sending a single paramedic to an emergency, where there is no other effective option, far outweigh the risks that are posed to both patients and the paramedics'. This submission encapsulates the respondent's resistance to the award. It is a telling submission. It implies that there is some benefit to sending a single paramedic to an emergency. It suggests that the practice occurs only when there is no other option. It accepts that there are risks associated with the practice. And it proposes that there be a weighing of those factors. 15. Addressing these matters, the HSU submits, on the evidence before it the Commission would conclude; first that the benefit of sending single paramedics to emergencies is negligible, secondly that there are other options to allocate labour that are not used by NSWA, and thirdly the proven and acknowledged risks outweigh the conjectured benefits. … 18. The better evidence is that of the paramedics who explained the dangers associated with responding single by reference to actual instances. NSWA's submissions ignore that evidence. … 19. The HSU Submissions set out other evidence from paramedics, academic papers, and other sources which confirm that there are serious risks to paramedics such as the dangers associated with driving an ambulance at high speed to an emergency under siren and lights; the difficulty in negotiating traffic in those circumstances; the difficulty in navigating unassisted to the emergency scene; the difficulty with the paramedic keeping updated about the emergency by way of the onboard computer display terminal while driving; the difficulty in performing risk assessments upon arrival; the manual handling risks associated with carrying equipment; the difficulty in providing assistance to perform important emergency treatments such as CPR alone; the manual handling risks associated with managing patients; the risks associated with managing volatile emergency scenes without assistance and the psychological impact of dealing with trauma scenes alone. 20. These other matters to be 'weighed up'. There is scant evidence from NSWA as to the benefits of dispatching paramedics alone. There is only the opinions of Mr McKenna, Ms Puustinen and Dr Bendall. The Commission is in no position to find that these asserted benefits outweigh the risks. 21. The commission [sic] must deal with the evidence before it. The HSU evidence makes good the case for Commission intervention by reference to actual occurrences. By contrast the NSWA evidence is general in nature, opinion based and asks the Commission to come to conclusions that are contrary to the experience of the paramedics who have the direct experience of responding to emergencies alone and have provided accounts of the risks associated with doing so."
We do not accept that there is only "scant evidence" of the benefits of single paramedic responses or that the Commission "is in no position to find" that the benefits asserted by NSW Ambulance outweigh the risks of single paramedic responses. We are also not persuaded that that evidence ought to be dismissed as being opinions amounting to conjecture, particularly having regard to the qualifications and experience of Dr Bendall and Mr McKenna in particular.
It is relevant to observe that the evidence of a number of the witnesses called by the HSU and the APA is corroborative of NSW Ambulance's contentions as to the potential benefits of single paramedic responses. That is, while the incidents that they describe would have been challenging, if not harrowing, their intervention in some of the cases - albeit as a single responder - led to a better patient outcome than if NSW Ambulance had delayed dispatching them to the incident until a dual crew could respond.
An example of this is seen in the evidence of Mr McEwen. He described attending as a single responder the scene of a gas explosion at an abattoir. We will not reproduce Mr McEwen's description of the incident or seek to recount it in detail. Suffice it to say, Mr McEwen was required to treat two patients for ammonia inhalation. Mr McEwen concluded his description of the incident, following his arrival at the local hospital, as follows: [28] "In the words of the treating doctor, the patient's 'airway was mush' and he would not have survived had I not attempted to eradicate the froth, as its presence was perpetuating the burns to their airways."
The APA submitted: [29] "17. The APA (NSW) accepts that there are serious difficulties in making an award in the terms sought. In particular there was clear and unchallenged evidence that a refusal to allow one person crewing could lead to very significant adverse health outcomes for potential patients n regional areas. … 18. The APA (NSW) accepts that such outcomes would be totally contrary to the obligations of the Ambulance Service and of paramedics. 19. Nevertheless, the APA (NSW) submits that two-person crewing is a desirable ambition that is supported by all of the parties and the intervenor."
Mr Latham of Counsel, who appeared for the APA, further submitted: [30] "I think the position of the parties is relatively clear, although I say that advisedly. The applicant seeks an award that does prohibit single‑crewing, and, while there's been some movement from that position today, there can be no doubt that that's the effect of clauses 4.1 to 4.4. I won't read them, but, both under the original application and also under the amended application, it makes it clear that paramedics simply can't be assigned to a single crew and then go out on duty. Those provisions clearly prohibit single‑crewing, and the submissions put in their favour do not resolve a fundamental problem, which was, particularly averred to by Mr Beaton, that single‑crewing will occur even with the best of intentions by all of the parties to this application; and that, also, the paramedics are unlikely in those situations to simply not respond, to leave the injured person to die."
We are persuaded to accept the position put by NSW Ambulance, that in certain instances the benefits to the patient of the timely attendance of a single responder outweigh any additional risks to the paramedic, and justify any compromises to the treatment protocols that might otherwise be applied by a dual crew.

Conclusion

In light of this determination, and having regard to all of the matters canvassed above, we are not persuaded to make the Proposed Award, or any award that would have the effect of prohibiting single paramedic responses.

Questions of prerogative

While it is not strictly necessary to deal with the issue having regard to the conclusion at [106] above, there is an additional consideration that argues against the Commission exercising its jurisdiction to make the Proposed Award. This concerns the extent to which in doing so the Commission would be inappropriately interfering with the Health Secretary's prerogative to manage NSW Ambulance.
The Ambulance Service of NSW is established pursuant to s 67A of the Health Services Act 1997 ("HS Act"). Section 67B of the HS Act relevantly provides as follows: 67B Provision etc of ambulance services (1) The Health Secretary has, on behalf of the Crown, the following functions - (a) to provide, conduct, operate and maintain ambulance services, … (c) in connection with ambulance services referred to in paragraph (a), to protect persons from injury or death, whether or not those persons are sick or injured, (d) to adopt and implement all necessary measures (including systems of planning, management and quality control) as will best ensure the efficient and economic operation and use of resources in the provision of ambulance services, … (g) to set objectives and determine priorities in relation to the provision of ambulance services and to monitor whether those objectives are achieved, (h) to achieve and maintain adequate standards of ambulance services …
NSW Ambulance submitted: [31] "40. …The Proposed Award seeks to interfere with the Health Secretary's statutorily enshrined managerial prerogative. … 41. The Commission will only make an award that interferes with managerial prerogative if it is satisfied that there is a risk to their [sic - paramedics'] health and safety such as to warrant the intervention of the Commission, and then only in a manner directed to that risk, and only to the extent necessary. … 43. Requiring paramedics to attend an incident alone, in circumstances where they are trained and have the capability to provide 'helping behaviours' and where there is no expectation on paramedics to do more than they are reasonably able to or put themselves in harm's way, does not impose unfair or unreasonable demands on paramedics and so does not result in an 'industrial injustice' requiring the Commission's intervention into matters which are properly within NSWA's managerial discretion."
NSW Ambulance further submitted that "the Commission is being asked to actually start running the Ambulance Service, not simply setting conditions of employment". [32]
In the In Orders Case, Commissioner Sloan observed: "29. It is well settled that an industrial tribunal 'should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted': Re Cram; ex parte New South Wales Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 136-137; [1987] HCA 28 at [29]. 30. In In re Dispute Between the Federated Engine Drivers and Firemen's Association of Australasia (Coast District) and the Broken Hill Pty Company Ltd (1950) 49 AR 371 Cantor J observed at 372: 'On the authorities, summarised the following is the legal position: First, an employer has the right to manage his own business in his own way; secondly, the Commission will not interfere with this right unless it is established that intervention is justified because in the exercise of this right unjust or unreasonable demands or conditions are imposed, or because the action of the employer is taken in bad faith or amounts to victimisation or oppression or the like…' 31. In BHP Steel (AIS) Pty Limited v The Federated Ironworkers' Association of Australia, New South Wales Division [1994] NSWIRComm 127 Hungerford J observed: 'The way in which issues of this nature are assessed by the Commission, involving as they do potential intervention in the employer's operation and management of its business, requires the Commission not to assume the role of the employer. Rather, the approach is, and this is of long-standing and established principle, to attend to whether the employer's action imposes unfair or unreasonable demands on employees, not infrequently referred to as industrial injustice, or where safety is involved.'"
Commissioner Sloan also noted the obligation imposed on the Commission by s 146(2) of the IR Act to "take into account the public interest in the exercise of its functions". He observed: "42. Further, and significantly, consideration of the public interest is not confined to an assessment of the shortcomings in the Proposed In Order asserted by the FBEU. The public interest requires acknowledgement of, and due regard being given to, the mandate conferred on the Commissioner of FRNSW by the legislature under the Fire and Rescue NSW Act and the Fire Brigades Regulation."
Similar considerations apply in the present case. The Proposed Award would intrude on, if not usurp, the functions imposed on the Health Secretary by s 67B(1) of the HS Act, as set out at [107] above. This is brought into particular focus by the extent to which the HSU's case was premised on questions of patient welfare as opposed to the terms and conditions on which paramedics are employed.
We are not persuaded that single paramedic responses expose paramedics to increased safety risks or to industrial injustice such as to warrant the Commission's intervention. The HSU has not presented a sufficient basis on which the Commission would interfere with the discharge by the Health Secretary of the functions conferred on her by the HS Act.
Further, having regard to our observations at [105] above, permitting single responders to deliver potentially life-saving care that might not otherwise be available is consistent with the Health Secretary's responsibilities under s 67B(1)(a), (c) and (h) of the HS Act. In the context of s 146(2) of the IR Act, to deny patients that care would be contrary to the public interest.

Conclusion

For the reasons set out above, we have determined not to make the Proposed Award. Having made that determination, it is not necessary that we traverse the alterative arguments advanced by NSW Ambulance as to why, as a matter of discretion, the Commission would not make the Proposed Award.

Alternative order

In light of the determination we have made, it would be open to the Commission to simply dismiss the Application. However, we agree with the following submissions advanced by Mr Latham: [33] "The third option, which I think appears to be proposed by nobody in this room, is that the Commission simply make no new award and no new variation. What that would really simply do is leave what is a very serious and longstanding issue unresolved until it inevitably gets raised again at some stage in the next year by one of the parties to this case and in my submission that is just a classic case of kicking the can down the road."
As noted at [29] above, NSW Ambulance proposed a variation to the PCCO Award so as to allow for specific reference to the Work Instruction. The clause proposed by NSW Ambulance would require it to apply the Work Instruction, but permit it to amend or replace the Work Instruction subject to having consulted with the HSU and the APA.
The APA accepted the terms of the clause proposed by NSW Ambulance. However, it sought numerous changes to the Work Instruction. It proposed that the parties be directed to confer on the amendments sought by the APA. In the absence of consent, the Full Bench would hear further from the parties and, presumably, make a determination as to the terms of the Work Instruction.
Having regard to the history of disputation between the parties over the issue of single paramedic responses, and the position taken by the parties in these proceedings, we consider it highly unlikely that negotiations between the parties regarding the terms of the Work Instruction would bear any fruit. If we were to adopt the APA's suggestion, it is all but inevitable that the Commission would not only be prolonging the dispute, but assuming responsibility for finalising the terms of what is ultimately an operational document. The same considerations as to managerial prerogative as dealt with above would arise.
We prefer the proposal advanced by NSW Ambulance. We acknowledge that the provision it proposes contains "words of qualification and uncertainty", as submitted by the HSU. [34] However, it would impose obligations on NSW Ambulance to apply the Work Instruction and to consult with the HSU and the APA over any proposed amendments to, or replacement of, the Work Instruction. Significantly, any grievances or disputes arising in respect of these matters would fall to be determined - including if necessary by the Commission - under the dispute resolution procedures in cl 42 of the PCCO Award.

Orders

The Commission orders that: 1. The Application be dismissed. 2. Pursuant to s 17(1) of the Industrial Relations Act 1996, the Paramedics and Control Centre Officers (State) Award 2021 be varied by adding to clause 22 a further subclause in the following terms: (l) The Service will apply rostering practices intended to avoid single paramedic responses to the extent practicable. To that end it will apply the Work Instruction titled Clinical Operations - Dual Paramedic Crewing dated 12 June 2020, or as amended or replaced by the Service from time to time following consultation.

Endnotes

The respondent to these proceedings is the Health Secretary in respect of NSW Ambulance, pursuant to s 116H of the Health Services Act 1997. For consistency with the evidence and the parties' submissions, we will refer to the employer as "NSW Ambulance".
HSU Final Submissions, 13 December 2021 at par 144
Exhibit to the Statement of Wayne McKenna, 1 October 2021, Tab 29
Secretary, Ministry of Health, for NSW Ambulance Outline of Closing Submissions, 21 January 2022 ("NSW Ambulance Closing Submissions")
Tcpt, 5 April 2022, p 23(2-4)
NSW Ambulance Closing Submissions at par 7
ibid. at par 8
Tcpt, 5 April 2022, pp 49(48)-50(13)
Tcpt, 5 April 2022, p 26(3-11)
HSU Final Submission, 13 December 2021
Statement, Michael Callinan, 6 August 2021 at pars 31 and 43
Statement, Michael John Grayson, 1 November 2021 at pars 13 and 14
Statement, Allison Moffitt, 1 November 2021 at par 10
Affidavit, Scott Beaton, 23 July 2021 at par 7
Affidavit, Liu Bianchi, 23 July 2021 at par 24
Affidavit, Timothy McEwen, 23 July 2021 at par 3
Tcpt, 15 November 2021, p 44(27-39)
Tcpt, 16 November 2021, p 71(8-10)
NSW Ambulance Closing Submissions at par 39
This summary of NSW Ambulance's evidence is drawn from the NSW Ambulance Closing Submissions at pars 38(d) and (e), and 55(b)(ii)
Statement, Allison Moffitt, 6 August 2021
Statement, Dr Jason Charles Bendall, 1 October 2021 at par 88
Tcpt, 17 November 2021, p 172(15-20)
ibid., p 175(37-46)
Tcpt, 16 November 2021, p 152(23)
NSW Ambulance Closing Submissions
HSU Final Reply Submission, 4 February 2022
Affidavit, Timothy McEwen, 23 July 2021 at par 21
APA (NSW) Final Submission, 13 December 2021
Tcpt, 5 April 2022, p 22(13-26)
Secretary, Ministry of Health, for NSW Ambulance Summary of Case, 8 October 2021
Tcpt, 15 November 2021, p 14(23-24)
Tcpt, 5 April 2021, p 24(15-20)
HSU Final Reply Submission, 4 February 2022 at par 25 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 May 2022

[1994] NSWIRComm 127

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